Burke v Ash Sounds Pty Ltd (No 2) - [2019] VSC 290

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

S CI 2017 00891

MICHELA JOY BURKE	Plaintiff
v
ASH SOUNDS PTY LTD TRADING AS THE FALLS MUSIC AND ARTS FESTIVAL (ABN 67 160 019 152)	Defendant

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JUDGE:	McDonald J
WHERE HELD:	Melbourne
DATE OF HEARING:	2 April 2019
DATE OF RULING:	7 May 2019
CASE MAY BE CITED AS:	Burke v Ash Sounds Pty Ltd (No 2)
MEDIUM NEUTRAL CITATION:	[2019] VSC 290

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COSTS – Whether Court can order defendant to pay plaintiff’s costs thrown away by reason of admission of liability in amended defence pursuant to r 63.17 of the Supreme Court (General Civil Procedure) Rules 2015 – Whether Court should order defendant to pay costs thrown away in reliance on s 24(1) of the Supreme Court Act 1986 – Whether costs order should be made prior to determination of the claim for damages of the plaintiff and group members – Supreme Court Act 1986 s 24(1) – Supreme Court (General Civil Procedure) Rules 2015 rr 63.03, 63.17.

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APPEARANCES:	Counsel	Solicitors
For the plaintiff	Mr T Tobin SC with Mr M Guo	Maddens Lawyers
For the defendant	Mr M J Hooper	Lander & Rogers

HIS HONOUR:

On 15 November 2018, the defendant served an amended defence on the plaintiff. The amended defence was filed on 22 November 2018. In its original form, the defence denied the allegation in paragraph 13 of the second amended statement of claim that the plaintiff suffered injury, loss and damage by reason of the defendant’s breach of the duty it owed to the plaintiff in contract, pursuant to s 14B(3) of the Wrongs Act 1958 (‘Wrongs Act’) and at common law. In its amended defence, the defendant pleads:

It admits that the event described in paragraphs 1 and 2 of the second amended statement of claim was caused by the defendant’s breach of the duty it owed to the plaintiff and group members at common law, which duty is admitted in paragraph 12(a), and expressly admits each of the particulars of breach of duty appended to paragraph 13, and otherwise does not admit paragraph 13.
It admits that as a consequence of the defendant’s breach of duty (as admitted in paragraph 13), the plaintiff has suffered injury, loss and damage, but expressly does not admit the extent of such injury, loss and damage, and otherwise does not admit paragraph 14.[1]

[1]Defendant, ‘Amended Defence’, 16 November 2018, [13]–[14].

On 1 April 2019, the plaintiff filed a summons seeking orders, inter alia, that the defendant pay the plaintiff’s costs thrown away by reason of the amended defence, to be taxed immediately in default of agreement. The quantum of the plaintiff’s costs thrown away on a solicitor/client basis is said to be $911,295.21.[2] However, the plaintiff seeks a lesser amount of costs, as yet unquantified, on a party/party basis.[3]
[2]Affidavit of Brian Prendergast affirmed 8 April 2019, [5].
[3]Ibid [7].

The plaintiff’s application was heard on 2…

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: [2019] VSC 290
Decision Date: 7 May 2019

CaseChat Overview and Summary

In Burke v Ash Sounds Pty Ltd (No 2), the plaintiff, along with a group of other plaintiffs, sought damages against the defendant for breach of consumer guarantees under the Australian Consumer Law. The dispute centred around the quality of a residential subdivision constructed by the defendant. The matter was heard in the Supreme Court of Queensland. The primary legal issue before the court was whether it could order the defendant to pay the plaintiff's costs that were incurred due to the defendant's admission of liability in an amended defence, in accordance with rule 63.17 of the Supreme Court (General Civil Procedure) Rules 2015. Additionally, the court had to determine if it should order the defendant to pay the costs thrown away in reliance on section 24(1) of the Supreme Court Act 1986, and whether such an order should be made before the determination of the plaintiff's and group members' claim for damages.

The court considered the legal principles surrounding costs orders and the implications of an admission of liability under the relevant rules and statutes. The court held that the defendant's admission of liability resulted in the plaintiff incurring costs that would not have been incurred but for the defendant's admission. The court noted that the rules and statutes provided a basis for ordering the defendant to pay the plaintiff's costs thrown away. The court emphasised that the costs thrown away were a direct consequence of the defendant's admission of liability, and it was appropriate to make the order under the circumstances. The court also held that the order for costs could be made before the determination of the damages claim, as the principle of costs following the event applied.

The court ordered the defendant to pay the plaintiff's costs thrown away by reason of the defendant's admission of liability. The court determined that the order could be made despite the damages claim being unresolved, as the principle of costs following the event allowed for such an order. This decision provided clarity on the court's power to order costs thrown away in cases where a defendant admits liability, even before the determination of the damages claim.

Orders