Bradford v Devlot 17 Pty Ltd (No 2) - [2020] VSC 828

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST

S ECI 2018 01134

VICKI ADELE BRADFORD and JONATHAN ALAN UPHILL	Plaintiffs/Defendants by counterclaim
v
DEVLOT 17 PTY LTD (ACN 126 265 790)	Defendant/Plaintiff by counterclaim

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JUDGE:	Kennedy J
WHERE HELD:	Melbourne
DATE OF HEARING:	Determined on the papers; submissions received on 3 December 2020 and 7 December 2020
DATE OF RULING:	8 December 2020
CASE MAY BE CITED AS:	Bradford v Devlot 17 Pty Ltd (No 2)
MEDIUM NEUTRAL CITATION:	[2020] VSC 828

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PRACTICE AND PROCEDURE – Costs – Where successful party should generally recover their costs – Whether plaintiffs properly characterised as the ‘successful party’ – Where defendant’s appeal unsuccessful – Where plaintiffs, in substance, brought a cross appeal –Where neither side wholly successful - No order for costs appropriate.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr D Lorbeer	Aitken Partners
For the Defendant	Mr P B Murdoch QC	Clayton Utz

HER HONOUR:

In reasons delivered on 27 November 2020 I determined that, subject to hearing from the parties, it was appropriate for an appeal against a decision of a Judicial Registrar to be dismissed with no order as to costs.[1]
[1][2020] VSC 792 (‘The reasons’).

Following the receipt of an objection from the plaintiffs as to the proposed costs order, I have subsequently received written submissions in relation to the question of costs.[2] The plaintiffs have submitted that the Court ought to make an order that the defendant pay two-thirds of their costs of the appeal. Such an order has been opposed by the defendant who submits that the appropriate order is that there be no order as to costs.
[2]The plaintiffs relied upon submissions dated 3 December 2020 and the defendant relied upon submissions dated 7 December 2020.

The sole issue is therefore what is the appropriate costs order in relation to the appeal.

Submissions

The plaintiffs emphasise that the starting point is that costs should follow the event, although this may be modified where there is conduct on the part of the successful party that would justify a different outcome.[3]
[3]Citing Northern Territory v Sangare (2019) 265 CLR 164, 173 [25].

The plaintiffs submitted that that they enjoyed a greater measure of success on appeal than the defendant did, thereby resulting in an order that the defendant pay two-thirds of the plaintiffs’ costs of the appeal. In support of this proposition they highlighted the finding that the Court allowed the plaintiffs leave to withdraw the concession that there had been a waiver.

The plaintiffs further submitted that there was nothing about their conduct in the case that would justify an outcome which displaced the general rule and deprived the plaintiffs of their costs in the entirety. On the contrary, the plaintiffs endeavoured to assist the Court, including by the helpful identification of key documents and contentions.

The defendant submits that the plaintiffs have not attached sufficient weight to the fact that the appeal was a…

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.

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Details

Case: [2020] VSC 828
Decision Date: 8 December 2020

CaseChat Overview and Summary

The case of Bradford v Devlot 17 Pty Ltd (No 2) involved a dispute concerning costs within the context of a legal proceeding. The plaintiffs, Bradford, were initially the successful party in their case against the defendant, Devlot 17 Pty Ltd. However, the defendant appealed the decision, leading to a complex situation where the plaintiffs, in effect, also appealed certain aspects of the case. The High Court of Australia was tasked with determining the appropriate allocation of costs in this multifaceted scenario.

The primary legal issue before the court was whether the plaintiffs, despite their initial success, could be considered the successful party for the purpose of cost recovery. Given that the defendant’s appeal was unsuccessful but the plaintiffs did not achieve a complete victory due to their own partial appeal, the court had to navigate the intricacies of the procedural history and the nature of the outcomes for both parties. The court had to consider whether the plaintiffs' partial success in their cross-appeal meant they were not wholly successful and thus not entitled to costs as the prevailing party.

The court concluded that neither party was wholly successful given the complex nature of the proceedings. The plaintiffs did not gain a complete victory due to the partial nature of their appeal, while the defendant's appeal was unsuccessful. As such, the court found that no order for costs was appropriate, reflecting the nuanced balance of success and failure between the parties. The court's decision emphasised the importance of assessing the overall success of each party in the context of complex litigation involving multiple appeals.

Orders