Bottos v CityLink Melbourne Ltd [No 2] - [2021] VSC 813

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PROPERTY LIST

S CI 2018 01383

NEILO STEFANO BOTTOS & ADRIAN LLOYD BOTTOS	Plaintiffs
v
CITYLINK MELBOURNE LTD (ACN 070 810 678)	Defendant

---

JUDGE:	Gorton J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF RULING:	8 December 2021
CASE MAY BE CITED AS:	Bottos v CityLink Melbourne Ltd [No 2]
MEDIUM NEUTRAL CITATION:	[2021] VSC 813

---

PRACTICE AND PROCEDURE – Costs – Where trial costs payable by plaintiffs following offer of compromise by defendant – Whether plaintiffs should be entitled to costs only on the County Court scale – Apportionment of costs – Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 63.04, 63.24, 63.25.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr M Clarke QC and Mr M Sharkey	Antony Sdrinis & Co
For the Defendant	Mr S Horgan QC and Ms A Hando	Herbert Smith Freehills

HIS HONOUR:

The Bottos brothers owned a property in Brunswick West. CityLink built a noise wall along the boundary of the property. The posts of the noise wall and their supporting structures encroached a small distance into the Bottos brothers’ property. There was also a larger encroachment consisting of an extruding lump of concrete that was referred to as ‘the spillage’. These encroachments interfered, in different ways, with the Bottos brothers’ development of the property. When CityLink was informed about the presence of the spillage, it removed it at its own cost, albeit after a period of delay. The posts of the noise wall and their supporting structures remained. In this proceeding, the Bottos brothers sought damages from CityLink for trespass. Their claimed damages were assessed by reference to the alleged effect on the progress of their development by the various encroachments. They sought damages of $1,133,383.[1] They also sought an order that CityLink remove those parts of the noise wall that remained on their property. On 16 September 2021, I published reasons in which I expressed my conclusions that only the spillage had constituted an actionable trespass.[2] I concluded that CityLink had adversely possessed the land occupied by the posts of the noise wall and their supporting structures. I assessed the damages that resulted from the spillage at $69,035 plus interest. The parties have agreed on the interest that is payable.
[1]This figure is taken from the Bottos brothers’ supplementary written submission at [5].
[2]Bottos v CityLink Melbourne Ltd [2021] VSC 585.

On 28 May 2021, CityLink served an offer of compromise in which it offered to pay to the Bottos brothers $320,000 plus costs. The Bottos brothers have (sensibly) not resisted an order that they pay to CityLink its costs as from 11am on 1 June 2021 on the standard basis.[3] The parties have not, however, reached agreement on the appropriate costs order that should be made in respect of costs incurred prior to that point in time.
[3]Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 26.08(3).

Should…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Bottos v CityLink Melbourne Ltd [No 2] and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] VSC 813
Decision Date: 8 December 2021

CaseChat Overview and Summary

Bottos v CityLink Melbourne Ltd [No 2] was a case before the Supreme Court of Victoria, where the primary dispute was the calculation of costs following an offer of compromise by the defendant, CityLink Melbourne Ltd. The plaintiffs, Bottos, sought an order that their costs should be limited to the County Court scale, as opposed to the Supreme Court scale, arguing that this was appropriate given the nature of the litigation. The case involved an apportionment of costs as per the Supreme Court (General Civil Procedure) Rules 2015 (Vic) rules 63.04, 63.24, and 63.25.

The primary legal issue the court needed to address was whether the plaintiffs were entitled to have their costs assessed according to the County Court scale, rather than the Supreme Court scale, particularly in light of the defendant's offer of compromise. The court had to consider the circumstances under which the offer of compromise was made, the nature of the litigation, and whether there were exceptional circumstances that justified a departure from the standard cost apportionment rules.

The Supreme Court examined the nature of the litigation and the offer of compromise, ultimately determining that the plaintiffs should not be entitled to costs only on the County Court scale. The court found that the litigation was complex and warranted the higher costs associated with Supreme Court proceedings. Additionally, the court held that there were no exceptional circumstances that would justify limiting the costs to the County Court scale. As a result, the plaintiffs were ordered to pay the defendant's costs on the Supreme Court scale, with specific apportionment as outlined in the Supreme Court (General Civil Procedure) Rules 2015 (Vic).

In conclusion, the Supreme Court ruled against the plaintiffs' contention that their costs should be limited to the County Court scale. The court's decision was based on the complexity of the litigation and the absence of any exceptional circumstances that would warrant a departure from the usual cost apportionment rules. The plaintiffs were therefore ordered to pay the defendant's costs on the Supreme Court scale.

Orders