Cargill Australia Ltd v Viterra Malt Pty Ltd (No 32)
[2022] VSC 299
•8 June 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
| AT MELBOURNE COMMERCIAL COURT | |
| S ECI 2014 00146 | |
| CARGILL AUSTRALIA LIMITED (ACN 004 684 173) | Plaintiff |
| v | |
| VITERRA MALT PTY LTD (ACN 096 519 658) AND OTHERS | Defendants |
| and | |
| CARGILL, INCORPORATED AND OTHERS | Third parties |
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| JUDGE: | Elliott J |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 2 March, 5 April 2022 |
| DATE OF RULING: | 8 June 2022 |
| CASE MAY BE CITED AS: | Cargill Australia Ltd v Viterra Malt Pty Ltd (No 32) |
| MEDIUM NEUTRAL CITATION: | [2022] VSC 299 |
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COSTS – Offers of compromise – Judgment for plaintiff – Judgment sum far in excess of offer of compromise – Whether plaintiff ought to be awarded indemnity costs – Presumption – Circumstances in which a court may “otherwise order” – Timing and nature of offer of
compromise – Ability to properly assess case at time of offer of compromise – Quantum claimed uncertain – Lack of particulars – Material changes to plaintiff’s pleaded case across several years – Costs of and incidental to the proceeding awarded on standard basis –
Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 26.08.
COSTS – Apportionment – Conduct of key parties – Material success of defendants on various matters – Matter of impression and evaluation – Consistency with overarching purpose and overarching obligations – Civil Procedure Act 2010 (Vic), ss 7, 8, 16-26 – Supreme
Court (General Civil Procedure) Rules 2015 (Vic), r 63.04.
COSTS – Third party claims – Whether indemnity costs ought to be awarded – Merits – “Walk away” offers – Genuine compromise – Time for award of indemnity costs – Applicable
principles – Where proceeding has no prospect of success – Hopeless case – Wilful disregard of known facts or clearly established law – Indemnity costs awarded to relevant third party
individuals for duration of the third party proceeding.
COSTS – Appropriate method of assessment of costs – Taxation or gross sum assessment – Unchallenged expert evidence on features of taxation and gross sum assessment – Costs
assessment to proceed by taxation.
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| APPEARANCES: | Counsel | Solicitors |
| For the plaintiff and the 1st | Mr P Solomon QC | Gilbert + Tobin |
| and 2nd third parties | Dr C Parkinson SC (2 March 2022) | |
| Ms K Burke (5 April 2022) | ||
| For the defendants | Mr A Myers QC (5 April | Johnson Winter & |
| 2022) | Slattery | |
| Mr S Senathirajah QC (2 March 2022) | ||
| Mr O Wolahan | ||
| For the 3rd third party | Mr S Rosewarne | Maddocks |
| For the 4th third party | Mr D Bongiorno | Gilchrist Connell |
| For the 5th third party | Ms M Szydzik | Gilchrist Connell |
| For the 6th third party | Mr C Archibald QC | HWL Ebsworth |
| Mr T Jeffrie | ||
| For the 7th third party | Ms C Alden | Gilchrist Connell |
TABLE OF CONTENTS
| A. | Introduction ................................................................................................................................... 1 | |||||
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| B. | Offers of compromise and the various iterations of Cargill Australia’s pleaded case ... 4 | |||||
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B.2.1 Original Statement of Claim ................................................................................. 5 B.2.2 Amended statement of claim ................................................................................. 7 B.2.3 Further amended statement of claim .................................................................... 7 B.2.4 Second further amended statement of claim ....................................................... 9 B.2.5 Further amendments during trial .......................................................................... 9
| C. | Legal principles .......................................................................................................................... 11 | |||||
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| D. | Costs submissions as between the Cargill Parties and the Viterra Parties ..................... 18 | |||||
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indemnity costs ................................................................................................................. 18
| D.2 | The Viterra Parties’ submissions ................................................................................... 20 | |||
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| D.2.3 Material changes to Cargill Australia’s case ................................................... 24 | ||||
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| D.3 | The Cargill Parties’ responsive submissions .............................................................. 33 | |||
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| E. | Analysis of primary issues between the Cargill Parties and the Viterra Parties ........... 41 | |||
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.............................................................................................................................................. 41
| E.2 | Apportionment of the Cargill Parties’ costs ................................................................ 57 | |
| F. | Costs submissions as between relevant Third Party Individuals and the Viterra Parties ........................................................................................................................................................ 65 | |
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F.1.1 Indemnity costs for duration of proceeding ...................................................... 65 F.1.2 Indemnity costs after offer of compromise ........................................................ 68
| F.2 | Wicks’ submissions .......................................................................................................... 69 | |||
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| F.3 | Stewart’s submissions ..................................................................................................... 72 | |||
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| F.4 | Argent’s submissions ....................................................................................................... 77 | |||
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| F.5 | The Viterra Parties’ submissions ................................................................................... 83 | |||
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| G. | Analysis of primary issues as between relevant Third Party Individuals and the Viterra |
Parties ........................................................................................................................................... 86
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| H. | Appropriate approach for the assessment of costs ............................................................ 101 | |||||||||||
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Observations relevant to the taxation of the Cargill Parties’ costs ................................. 107
| J. | Conclusion and form of orders .............................................................................................. 111 |
HIS HONOUR:
| A. | Introduction | |
|
1 This is another set of lengthy reasons for decision in this proceeding, which is
regrettable given these reasons are concerned with the question of costs. At the
helpful direction of the Court of Appeal,[1] a trial division judge may give rulings with
[1] Luxmore Pty Ltd v Hydedale Pty Ltd (2008) 20 VR 481, 484 [12] (Maxwell P and Kellam JA). See further par 31 below.
respect to costs without detailed reasons. However, the parties have again asked the
court to determine a large number of issues. This is not said by way of criticism,
particularly with respect to the individuals who have been the subject of third party
claims. Those individuals have been put through years of litigation and were entitled
to refer to the claims against them in detail and point out their lack of merit. Further,
it is likely that some matters raised by the parties on the question of costs will result
in substantial financial consequences, depending on the manner in which they are
determined.
2 As part of these reasons, it has been necessary to refer to a number of issues raised for
determination at trial. In order to confine the length of these reasons, on occasions
summaries have been provided with respect to what had been previously argued or
decided. These summaries are not intended to go beyond or to alter what has
previously been stated. For a proper understanding of the issues, it may be necessary
to read previous decisions in this case.
3 Finally in relation to these introductory remarks, these reasons necessarily make some
observations about the way in which this proceeding has been conducted by some of
the parties. Nothing that follows should be understood to detract from my full
appreciation of the high level of endeavour shown by the legal representatives in this
case and the considerable degree of difficulty they endured in representing their
clients in such a large and long-running case.
A.2 Background 4 The events the subject of this proceeding largely occurred in 2013. On 4 August 2013,
the plaintiff, Cargill Australia Ltd (“Cargill Australia”), entered into an agreement to
purchase all of the issued shares in the second third party, Joe White Maltings Pty Ltd
(“Joe White”), and some additional assets not owned by Joe White for the sum of $420
million (“the Acquisition Agreement”). The sellers were the first 3 defendants, Viterra
Malt Pty Ltd (“Viterra Malt”), Viterra Operations Ltd (“Viterra Operations”) and
Viterra Ltd (collectively, “Viterra”). The ultimate parent company of Viterra, the
fourth defendant, Glencore International AG (“Glencore”) (Viterra and Glencore
together, “the Viterra Parties”), was also heavily involved in the sale process.
5 In addition to contractual breaches, Cargill Australia alleged that the transaction was
infected by misleading conduct and impropriety. In October 2014, Cargill Australia
commenced this proceeding, which at that time included allegations of misleading or
deceptive conduct (under the Australian Competition and Consumer Act 2010 (Cth) (“the
Australian Consumer Law”)) and breach of contract, but not deceit. There were
numerous amendments made to Cargill Australia’s claim over the course of the
proceeding. A series of interlocutory steps and disputes led to the trial not
commencing until 18 June 2018. The trial was lengthy and the interlocutory disputes
continued to arise unabated (even after judgment was reserved).[2] Judgment was
[2] For a more complete summary of the protracted history of this proceeding, see Cargill Australia Ltd v Viterra Malt Pty Ltd (No 25) [2020] VSC 172.
delivered on 28 January 2022 (“the Principal Judgment”).[3]
[3] Cargill Australia Ltd v Viterra Malt Pty Ltd (No 28) [2022] VSC 13. For convenience, the definitions contained in the Principal Judgment will also be used in this judgment.
6 In addition to Joe White, there were 6 other third parties. The first third party was
Cargill Australia’s parent company, Cargill, Incorporated (“Cargill, Inc”) (together
with Cargill Australia, “Cargill”) (Cargill and Joe White together, “the Cargill
Parties”). The remaining third parties (“the Third Party Individuals”) were
individuals who were employed by Viterra Ltd at all relevant times up until the
completion of the Acquisition Agreement on 31 October 2013 (“Completion”). The
Third Party Individuals worked as executives of the business conducted by Viterra
and Joe White (“the Joe White Business”).[4]
[4] As to the full meaning of the Joe White Business, see Principal Judgment, fn 13. Glencore also had some limited involvement in the conduct of the Joe White Business after it acquired the Viterra Group in December 2012, with a number of Glencore executives replacing Viterra executives by becoming directors of Viterra Ltd, Viterra Operations, Viterra Malt and Joe White: Principal Judgment, [9], [47], [97]-[99], [108], [142], [366], [4800], fnn 123, 288, 298, 1793, 4195, 4196.
7 Broadly speaking, Cargill Australia was successful in establishing various aspects of
its case, and accordingly was found to be entitled to damages in a sum being the
difference between the purchase price paid and the true value of Joe White. By further
judgment delivered on 17 February 2022 the amount of those damages was set at
$168.9 million.[5] Also putting it broadly, the Viterra Parties were substantially
[5] Cargill Australia Ltd v Viterra Malt Pty Ltd (No 29) [2022] VSC 66. Further, interest on the judgment sum was awarded at $124,229,320.30: see Cargill Australia Ltd v Viterra Malt Pty Ltd (No 30) [2022] VSC 80.
unsuccessful in their third party claims, although nominal damages were awarded in
their favour against the third third party, Gary Hughes (“Hughes”).[6]
[6] See Principal Judgment, [5268]; Cargill Australia Ltd v Viterra Malt Pty Ltd (No 31) [2022] VSC 164.
A.3 Remaining costs issues 8 The main issues now in dispute are fivefold. First, whether indemnity costs ought to
be awarded against the Viterra Parties in respect of Cargill Australia’s claims against
them. Secondly, whether indemnity costs ought to be awarded against the Viterra
Parties in respect of their unsuccessful third party claims against the Third Party
Individuals other than Hughes.[7] Thirdly, if indemnity costs are to be awarded
[7] The costs position of Hughes was the subject of the reasons delivered on 4 April 2022, and accordingly will not be considered here: ibid.
regarding any of these claims, the time from which they ought to be awarded.
Fourthly, whether or not it is appropriate for any costs awarded in favour of Cargill
Australia to be apportioned. Fifthly, regardless of the basis of the award, in default of
agreement whether any costs awarded should be taxed by the Costs Court or be the
subject of a gross sum assessment.
9 For the reasons that follow, the answers to these 5 issues are: (1) no, they will be
awarded on a standard basis; (2) yes; (3) from the commencement of the third party proceeding; (4) yes, the Viterra Parties will be ordered to pay 92.5 percent of Cargill
Australia’s costs on a standard basis; (5) in default of agreement, all costs will be taxed
by the Costs Court.
| B. | Offers of compromise and the various iterations of Cargill Australia’s pleaded case | |
|
10 A number of offers of compromise have been made in accordance with order 26 of the
Supreme Court (General Civil Procedure) Rules 2015 (Vic) (“the Rules”). None of them
was accepted. It is convenient to set out the details of those offers here:
(1) On 26 March 2015, the Cargill Parties served an offer of compromise on the Viterra Parties (“the Cargill Offer”). By the Cargill Offer, Cargill Australia offered to settle all its claims against the Viterra Parties by the Viterra Parties paying to Cargill Australia the sum of $85 million, plus costs as agreed or taxed. The Cargill Offer was open for acceptance until 5.00pm on 16 April 2015. (2) On 2 June 2015, the Viterra Parties sent an offer of compromise to the Cargill Parties (“the Viterra Offer”). The Viterra Offer was for the Viterra Parties to pay to Cargill Australia the sum of $15 million plus costs as agreed or taxed, in full and final settlement. The Viterra Offer was open for acceptance for 14 days from the date it was made, and was rejected on 16 June 2015.[8] (3) On 15 June 2018, an offer of compromise was made to the Viterra Parties on behalf of the sixth third party, Douglas Stewart (“Stewart”), offering to compromise the third party claim against him for the sum of $0.00 inclusive of costs and disbursements, and for Stewart to bear his own costs of the proceeding (“the Stewart Offer”). The Stewart Offer expired on 30 June 2018. (4) On 21 June 2018, offers of compromise were made to the Viterra Parties on behalf of the fourth third party, Peter Youil (“Youil”), and the seventh third party, Scott Argent (“Argent”), in respect of the third party claims against each of them (respectively, “the Youil Offer” and “the Argent Offer”). Both offers were for the claims to be compromised and discontinued without any amount being paid to the Viterra Parties, and with each party bearing its or his own costs. No response to either the Youil Offer or the Argent Offer was received within the 14 day period for acceptance. (5) On 22 June 2018, the fifth third party, Robert Wicks (“Wicks”) made an offer of compromise to the Viterra Parties (“the Wicks Offer”). The Wicks Offer provided for settlement on the basis that Wicks and the Viterra Parties bear their own costs and the claim against Wicks be discontinued without any payment. No response to the Wicks Offer was received within the 14 day period it was open.
[8] See par 65 below.
B.2 Cargill Australia’s pleaded case as amended over approximately 5 years[9] [9] Cargill Australia’s statement of claim was amended in 2014, 2015, 2017, 2018 (twice) and 2019.
11 To put the Cargill Offer in its proper context, it is necessary to review how Cargill
Australia’s case was pleaded at various stages of the proceeding.[10]
[10] In the interests of conciseness, some general language has been adopted in describing the causes of action pleaded.
B.2.1 Original Statement of Claim
Cargill Australia’s original statement of claim was filed on 1 October 2014. It named
Viterra as the defendants. Glencore was not a party at this point. The original
statement of claim alleged Viterra had engaged in misleading or deceptive conduct in
contravention of section 18 of the Australian Consumer Law by making each of the Financial and Operational Performance Representations,[11] the Warranty
[11] Principal Judgment, [2826].
Representations,[12] and the Pre-Completion Representations.[13]
[12] Ibid, [3739].
[13] Ibid, [3299].
13 Further, Cargill Australia alleged Viterra had breached certain Warranties[14] provided
[14] Ibid, [1022].
in the Acquisition Agreement.
14 Furthermore, in respect of the Financial and Operational Performance
Representations, the Warranty Representations and the Pre-Completion
Representations, it was alleged that Viterra knew (or ought to have known) that
Cargill Australia relied upon these representations. It was also alleged that Viterra
owed a duty to take reasonable care in making the representations and in breach of
that duty had negligently misrepresented the state of the Joe White Business.
15 By reason of these contraventions and breaches of duty, Cargill Australia alleged it
had suffered loss comprising the difference between the purchase price it had paid
and (1) the true value of Joe White, or (2) the price that Cargill Australia would have
paid for Joe White had the misrepresentations not been made. In respect of this
alleged loss, the original statement of claim stated that “further particulars will be
provided prior to trial”. In relation to the alleged breaches of contract, Cargill
Australia referred to and repeated the particulars as summarised immediately above.
Further or alternatively, it set out other bases for calculating loss based on loss of
production, the incurring of additional operational expenditure and investment in
capital expenditure. Again, further particulars were promised prior to trial.
16 In addition, Cargill Australia made a claim concerning the Co-Operative Bulk
Agreement.[15] It was alleged certain representations were made about its status that
[15] Ibid, [89].
were false and misleading or deceptive in contravention of section 18 of the Australian
Consumer Law. It was further alleged that this gave rise to a breach of some of the
Warranties. Further still, it was alleged Viterra owed a duty to take reasonable care in providing the Financial and Operational Information[16] and that, by reason of the
[16] Ibid, [1851].
matters pleaded in relation to representations regarding the Co-Operative Bulk
Agreement, that duty was breached. The loss with respect to this claim was alleged
to be $2,399,409.10, “being the sum that Cargill has paid to [Co-Operative Bulk]”.
B.2.2 Amended statement of claim 17 On 17 November 2014, Cargill Australia filed an amended statement of claim pursuant
to orders that also added Glencore as a defendant. The amended statement of claim
expanded the nature of Cargill Australia’s case, predominantly because Cargill
Australia alleged causes of action directly against Glencore (including by reason of
conduct allegedly engaged in by Viterra, David Mattiske (“Mattiske”)[17] and Hughes)
[17] Ibid, [97].
and attributed the actions of Viterra to decisions made by Glencore and its agents.
With respect to loss and damage, Cargill Australia again indicated that “further
particulars will be provided prior to trial”. On 27 February 2015, the solicitors then
acting for the Cargill Parties’ provided a response to “all outstanding requests for
particulars” from the Viterra Parties. General particulars were provided as to the
bases upon which it was claimed loss had been suffered. On the alternate scenarios
given, the loss was estimated in the range of $187 million to $195 million, alternatively
$170 million to $172 million. However, Cargill Australia put these figures forward
under cover of an objection and refused to be bound by them. In other words, they
were put forward on the basis that they were subject to change. Cargill Australia
stated that ascertaining the true value of the Joe White Business (together with the
shares the subject of the sale) at the date of Completion was a matter for expert
evidence. As things transpired, this evidence was not provided by the Cargill Parties
until nearly 3 years later.
B.2.3 Further amended statement of claim 19 Cargill Australia filed a further amended statement of claim on 2 April 2015, after earlier drafts had been served.[18] It contained additional sections that attributed
[18] Orders made on 20 March 2015 provided for Cargill Australia to provide a draft further amended statement of claim by 4.00pm on 23 March 2015 and if the filing of the document was consented to by the Viterra Parties, then leave was granted to file it by 4.00pm on 6 April 2015. See further pars 57, 73 below.
further responsibility to the Viterra Parties for the misleading representations already
pleaded. In replacement of existing particulars, schedule D was inserted and
contained lengthy details concerning the Viterra Parties’ alleged knowledge of the
true state of affairs within Joe White.[19] The further amended statement of claim ran
[19] The previous statements of claim included schedules A, B and C. Schedule D was new and ran for more than 6 pages.
for 63 pages, including schedule D (but not including the pre-existing schedules A, B
and C).
20 Importantly, the further amended statement of claim added new and serious causes
of action involving alleged dishonesty. Cargill Australia alleged that the Viterra
Parties had engaged in common law deceit in light of the fact that they knew the
various representations were false, did not genuinely believe the representations were
true, or were reckless as to the truth of the representations.[20] For completeness, the
[20] These allegations were made in 11 new paragraphs which ran for more than 6 pages.
Cargill Parties had previously raised allegations concerning fraud and wilful
misconduct in Cargill Australia’s reply and defence to counterclaim filed 4 February
2015. However, those allegations were devoid of substantive particulars.[21] On 12
[21] In addition to referring to par 39 of the amended statement of claim (which did not contain any express
February 2015, the Viterra Parties’ solicitors stated in correspondence to the Cargill
Parties’ solicitors that these allegations of fraud should have been struck out. In
response to this suggestion, the Cargill Parties’ solicitors suggested Cargill Australia
would address any substantive issues raised in subsequent amendments.[22] In short,
[22] In subsequent iterations of the reply and defence to counterclaim, Cargill Australia withdrew key paragraphs that had alleged fraud as originally pleaded on 4 February 2015.
no pleading emanating from Cargill Australia properly identifying how a case of
fraud was to be put against the Viterra Parties had been filed or served before the draft
further amended statement of claim was provided to the Viterra Parties.
21 For the purpose of the breach of warranty claim, a further section concerning the
deemed knowledge of the Viterra Parties was also added.
22 Further, the further amended statement of claim contained additional allegations in
relation to the Confidentiality Deed,[23] in respect of which declaratory relief was
[23] Principal Judgment, [459], [462], [585], [1022].
sought. A new allegation was also made that the Viterra Parties had failed to pay all
the amounts owed to Cargill Australia under the Acquisition Agreement by virtue of
a determination by the Independent Expert (based on Cargill Australia’s
interpretation of the determination).[24] It was alleged the amount that Viterra Malt had
[24] Ibid, [3908].
failed to pay was $774,886.64 plus interest.
B.2.4 Second further amended statement of claim 23 On 11 July 2017, Cargill Australia filed a second further amended statement of claim.
This statement of claim made substantial additions to Cargill Australia’s deceit claim.
Also in relation to deceit, loss was claimed on the same basis as had been claimed for
a number of the allegations relating to misleading conduct.[25]
[25] See par 15 above. Presumably by reason of oversight, this had not been done previously.
24 Further, Cargill Australia introduced a new allegation that the Viterra Parties had
engaged in misleading or deceptive conduct and deceit by making the Other Bidders
Representations.[26]
[26] Principal Judgment, [3777].
25 Cargill Australia also made substantial amendments to schedule D, which set out
additional information regarding the Viterra Parties’ alleged knowledge.[27]
[27] Schedule D was expanded from just over 6 pages to 23½ pages.
B.2.5 Further amendments during trial
Cargill Australia’s statement of claim went through several additional amendments,
culminating in the fifth further amended statement of claim (“the Statement of
Claim”).[28] A comparison of the second further amended statement of claim (which
[28] Principal Judgment, [1849]. See further par 71 below for some of the amendments made earlier during the trial.
was the claim as it stood when the trial started) and the Statement of Claim (which
was the claim from 13 May 2019 until the end of the trial) reveals the extent to which
Cargill Australia’s claim changed during the trial.
27 In particular, and without being exhaustive of the further amendments made, the
Statement of Claim contained:
(1) Additional detail about the nature and content of the Information Memorandum Statements.[29] (2) Further particulars concerning the Operations Call Statements and Commercial Call Statements.[30] (3) The addition of 21 pages of particulars regarding the allegations concerning the existence of the Undisclosed Matters.[31] (4) New allegations based on the Management Presentation Statements,[32] the Undisclosed Matters and the Financial and Operational Performance Representations. (5) Additional allegations and particulars as to why it was alleged that the Viterra Parties had engaged in misleading or deceptive conduct.[33] (6) The introduction of particulars as to why it was alleged that Joe White was in material default of Material Contracts.[34] (7)
New allegations that by reason of the Pre-Completion Representations, Cargill Australia was deprived of the opportunity to obtain properly
informed legal advice. (8) Further particulars concerning how the Viterra Parties had caused loss to Cargill Australia and the quantification of that loss, including the removal of the alternate cases based on a reduced purchase price, loss of production or increased operational or capital expenditure.[35] [29] Ibid, [2146].
[30] Ibid, [2149], [2165].
[31] Ibid, [1851]. In part, these replaced the particulars that had previously been the subject of schedule B (which was just over 2 pages long and did not provide nearly as much detail as these further particulars).
[32] Ibid, [2168]. Allegations based on the Management Presentation Statements had not previously been made.
[33] In part, these also replaced what had previously been the subject of schedule B.
[34] Principal Judgment, [1022], [3633]-[3674]. These particulars ran for 6 pages.
[35] See also par 111 below.
| C. | Legal principles |
The court’s jurisdiction as to costs is conferred by section 24(1) of the Supreme Court
Act 1986 (Vic). The court has full power to determine by whom and to what extent
costs of and incidental to the proceeding are to be paid, unless otherwise expressly
provided for by another Act or the Rules.[36] However, the discretion must be exercised
[36] Rule 63.02.
judicially, by reference only to considerations relevant to its exercise and based upon
facts connected with or leading up to the litigation.[37]
[37] Northern Territory v Sangare (2019) 265 CLR 164, 172 [24] (Kiefel CJ, Bell, Gageler, Keane and Nettle JJ); Oshlack v Richmond River Council (1998) 193 CLR 72, 96 [65] (McHugh J, dissenting), 120-121 [134] (Kirby J).
29 The exercise of the discretion is informed in part by section 65C of the Civil Procedure
Act 2010 (Vic), which provides that “[i]n addition to any other power a court may have
in relation to costs, a court may make any order as to costs it considers appropriate to
further the overarching purpose”. The overarching purpose of the Civil Procedure Act
is “to facilitate the just, efficient, timely and cost-effective resolution of the real issues
in dispute”.[38] In determining whether to make an order under section 65C(1), the
[38] Civil Procedure Act, s 7(1).
court may consider various matters including the complexity of the factual or legal
issues raised in the proceeding.[39]
[39] Civil Procedure Act, s 65C(2A)(b).
30 Generally speaking, the successful party will be entitled to an award of costs in its
favour.[40] An award of costs seeks to indemnify the successful party, as opposed to
punish the unsuccessful party.[41][40] Oshlack v Richmond River Council (1998) 193 CLR 72, 97 [67] (McHugh J, dissenting).
[41] Ibid, 75 [1] (Brennan CJ, dissenting), 89 [44] (Gaudron and Gummow JJ), 97 [67], 121 [134].
As to the court’s approach to resolving costs disputes, in Luxmore Pty Ltd v Hydedale
Pty Ltd,[42] the Court of Appeal noted that it is not necessary for judges to give elaborate
[42] (2008) 20 VR 481.
reasons or advert to every matter raised in argument.[43] Rather, it is to be assumed
[43] Ibid, 484 [12] (Maxwell P and Kellam JA).
that every matter addressed in argument on costs has been considered by the court.[44]
[44] Ibid. In light of the extensive issues raised at trial and on this application, there is a commensurate level
32 The court may award costs on a standard basis, an indemnity basis or any other basis
as it may direct.[45] Further, in some circumstances the court may dispense with the
[45] Rule 63.28.
regular taxation process by awarding costs on a gross sum basis.
C.1 Indemnity costs 33 An order for costs will generally indemnify the successful party, at least in part, for
costs incurred in the relevant proceeding.
34 Indemnity costs are to be distinguished from costs awarded on a standard basis. An
order for indemnity costs consists of “all costs … except in so far as they are of an
unreasonable amount or have been unreasonably incurred”.[46] By contrast, costs
[46] Rule 63.30.1.
awarded on a standard basis comprise “all costs reasonably incurred and of
reasonable amount”.[47] The point of difference is therefore who bears the onus of
[47] Rule 63.30.
establishing that the relevant costs are reasonable or unreasonable.[48] If costs are
[48] See Hazeldene’s Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) (2005) 13 VR 435, 439 [12]
awarded on an indemnity basis, then the cost will be payable unless the opposing
party can show they have been unreasonably incurred or are of an unreasonable
amount. Whereas on a taxation of costs awarded on a standard basis, the party in
whose favour the award was made must establish the costs were reasonably incurred
and are of a reasonable amount.[49][49] Ibid.
35 An award of indemnity costs is usually attended by special circumstances which
justify the court departing from the ordinary practice of awarding standard costs as
part of costs following the event.[50] The circumstances in which indemnity costs may
[50] Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225, 233.5 (Sheppard J); Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397, 400.8-401.2 (Woodward J) and the authorities there cited.
be awarded are not rigid or closed, and each case must be determined on its own
particular facts.[51] Nonetheless, indemnity costs may be awarded in the following
[51] Ragata Developments Pty Ltd v Westpac Banking Corporation (1993) 217 ALR 175, 177.8 (Davies J); Colgate- Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225, 233.6.
established categories:[52]
[52] For a more extensive list: see Sunland Group Ltd v Prudentia Investments Pty Ltd [2013] VSCA 237, [542]- [551] (Warren CJ, Osborn JA and Macaulay AJA).
(1) Where proceedings are commenced or continued for an ulterior motive.[53] (2) Where proceedings are commenced or continued in wilful disregard of known facts or clearly established law.[54] (3) Cases involving “the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions”.[55] (4) Where a genuine offer of compromise is imprudently refused.[56] [53] Sunland Group Ltd v Prudentia Investments Pty Ltd [2013] VSCA 237, [546]; Ugly Tribe Co Pty Ltd v Sikola [2001] VSC 189, [7] (Harper J); Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397, 401.3.
[54] Sunland Group Ltd v Prudentia Investments Pty Ltd [2013] VSCA 237, [544], citing Ugly Tribe Co Pty Ltd v Sikola [2001] VSC 189, [7]; Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225, 233.8; Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397, 401.4.
[55] Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225, 233.8, citing Ragata Developments Pty Ltd v Westpac Banking Corporation (1993) 217 ALR 175, 178.8.
[56] Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225, 233.9. See further par 44 below.
36 In Macedon Ranges Shire Council v Thompson,[57] it was held that indemnity costs may be
[57] (2009) 170 LGERA 41.
awarded where it appears that an action has been commenced in circumstances where the applicant, properly advised, should have known it had no chance of success.[58] In
[58] Ibid, 49 [15] (Redlich JA and Beach AJA).
considering whether such a conclusion ought be made, a court is required to consider
not only what a party knew, but also what it ought to have known including by reason
of enquiries it ought to have made and advice it ought to have obtained.[59]
[59] Ibid. See par 176 below for the relevant passage. See also Oversea-Chinese Banking Corporation v Richfield Investments Pty Ltd [2004] VSC 351, [34] (Redlich J).
37 In relation to whether a party appreciated the “hopelessness” of its position for the
purpose of an award of indemnity costs, in the absence of direct evidence the court
must carefully consider the relevant circumstances before drawing any inference
about a party’s level of understanding or reasons for commencing or continuing with
its claim.[60]
[60] See, for example, Ugly Tribe Co Pty Ltd v Sikola [2001] VSC 189, [18] (Harper J).
C.2 Offers of compromise 38 An offer of compromise which has costs consequences may be effected by common
law principles, including relating to the provision of offers made without prejudice
save as to costs, or by order 26 of the Rules.
39 Order 26 enables parties to serve on another party an offer of compromise on specified
terms.[61] In form, such an offer must adhere to certain statutory requirements.[62] Such
[61] Rule 26.02(1).
[62] See r 26.02(3) and (4).
offers, validly made, are taken to be made without prejudice unless otherwise
provided.[63]
[63] Rule 26.04.
40 The objectives of order 26 include encouraging the saving of private costs; avoiding
the inherent risks, delays and uncertainties of litigation by promoting early offers;
enabling the saving of public costs incurred by the litigation; and indemnifying
plaintiffs who have made an offer of compromise, later found to be reasonable, from
costs incurred after that offer.[64] However, potential litigants should not be
discouraged from bringing their dispute to the courts.[65][64] Grbavac v Hart [1997] 1 VR 154, 164.7-165.1 (Hayne JA, dissenting), citing Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721, 724E (Kirby P, Mahoney JA and Samuels AJA).
[65] Hazeldene’s Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) (2005) 13 VR 435, 441 [22] (Warren
41 If a valid offer of compromise was made but has not been accepted at the time of
verdict or judgment, costs consequences may ensue.[66] Rule 26.08 provides:
[66] Rule 63.16 provides that where an offer of compromise is served and the offer has not been accepted at the time of judgement, liability for costs shall be determined in accordance with rule 26.08.
(1) This Rule applies to an offer of compromise which has not been accepted at the
time of verdict or judgment.(2)
Where an offer of compromise is made by a plaintiff and not accepted by the defendant, and the plaintiff obtains a judgment on the claim to which the offer relates no less favourable to the plaintiff than the terms of the offer, then, unless
the Court otherwise orders, the plaintiff shall be entitled – …
(b) in the case of any other claim of the plaintiff,[67] to an order against the [67] That is, not a claim for damages for or arising out of death or bodily injury.
defendant for the plaintiff’s costs in respect of the claim before 11.00
a.m. on the second business day after the offer was served, taxed on the
ordinarily applicable basis and for the plaintiff’s costs thereafter taxed
on an indemnity basis.
…
(4)
Where an offer of compromise is made by a defendant and the plaintiff unreasonably fails to accept the offer and the claim to which the offer relates is dismissed or judgment on the claim is entered in favour of the
defendant, then unless the Court otherwise orders—
(a) the defendant shall be entitled to an order against the plaintiff for the defendant’s costs in respect of the claim until 11.00 a.m.
on the second business day after the offer was made, taxed on
the ordinarily applicable basis; and
(b) the defendant shall be entitled to an order against the plaintiff in respect of the defendant’s costs after the time referred to in
paragraph (a) taxed on an indemnity basis.
…
(7)
Paragraphs (2), (3) and (4) shall not apply unless the Court is satisfied by the party serving the offer of compromise that that party was at all
material times willing and able to carry out the party’s part of what was proposed in the offer.[68] … [68] There was no submission made that any party who served an offer of compromise was other than willing and able to carry it out.
(Emphasis added.)
42 Thus, rule 26.08(2) creates a presumption that indemnity costs will be awarded in
circumstances where an offer of compromise is made by a plaintiff but not accepted,
and the plaintiff subsequently obtains a judgment no less favourable than the terms
of the offer. A like presumption is created for the benefit of a defendant[69] where it has
[69] This includes a third party who by definition is a defendant to a third party claim.
had its offer of compromise unreasonably not accepted and the claim against it is
subsequently dismissed or judgment is entered in its favour.
In relation to the court’s discretion to otherwise order, the party seeking to displace
the presumptive rule bears the onus.[70] The decision to otherwise order will not be
[70] PCCEF Pty Ltd v Geelong Football Club Ltd [2019] VSCA 191, [23]-[24] (McLeish and Emerton JJA, Whelan JA dissenting based on the facts of the case); Re Saric; Saric v Vukasovic (No 2) [2018] VSC 254, [16]-[17] (McMillan J).
made lightly, and the court must exercise caution in departing from this rule.[71]
[71] Ibid.
44 The exercise of the discretion to otherwise order depends on whether such an order
would advance the purpose of order 26.[72] A relevant question is whether the rejection
[72] PCCEF Pty Ltd v Geelong Football Club Ltd [2019] VSCA 191, [25]; Grbavac v Hart [1997] 1 VR 154, 165.1 (Hayne JA, dissenting).
of the offer was unreasonable in the circumstances, though reasonableness alone is not
determinative.[73] In Hazeldene’s Chicken Farm Pty Ltd v Victorian Workcover Authority
[73] Stevens v Spotless Management Services Pty Ltd (No 2) [2016] VSCA 311, [26]-[27] (Kyrou and McLeish JJA
(No 2), the Court of Appeal non-exhaustively outlined the factors ordinarily relevant
to assessing unreasonableness in the following way:[74]
[74] Hazeldene’s Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) (2005) 13 VR 435, 442 [25]. See
The discretion with respect to costs must, like every other discretion, be exercised taking into account all relevant considerations and ignoring all irrelevant considerations. It is neither possible nor desirable to give an exhaustive list of relevant circumstances. At the same time, a court considering a submission that the rejection of a Calderbank offer[75] was unreasonable should ordinarily have regard at least to the following matters:
[75] A reference to an offer made without prejudice save as to costs, as explained in Calderbank v Calderbank [1976] Fam 93, 105H-106F (Cairns LJ, with whom Scarman LJ and Sir Gordon Willmer agreed).
(a) the stage of the proceeding at which the offer was received; (b) the time allowed to the offeree to consider the offer; (c) the extent of the compromise offered; (d) the offeree’s prospects of success, assessed at the date of the offer; (e) the clarity with which the terms of the offer were expressed; (f) whether the offer foreshadowed an application for indemnity costs in the event of the offeree’s rejecting it.
(Citation omitted.)
45 The assessment is a question of judgment and impression, assessed at the time the
offer of compromise was made, without the advantages of hindsight.[76] It is not
[76] Secretary to the Department of Transport v Provan’s Timber Pty Ltd (No 2) [2020] VSCA 258, [25] (Tate,
presumed that a refusal is unreasonable simply because the offered sum is higher than
the ultimate award.[77]
[77] Secretary to the Department of Transport v Provan’s Timber Pty Ltd [2020] VSCA 258, [25]; Hazeldene’s
46 In some circumstances, a “walk away” offer may constitute a genuine attempt to
compromise the dispute, rendering a rejection of the offer unreasonable.[78] In others,
[78] Defteros v Google Inc [2017] VSC 189, [6], [15] (John Dixon J); Love v State of Victoria (No 2) [2009] VSC 531, [27]-[29] (Cavanough J); Roads and Traffic Authority of New South Wales v Refrigerated Roadways Pty Ltd (No 2) [2009] NSWCA 336, [17] (Campbell JA, with whom McColl JA and Sackville AJA agreed).
such offers may be treated as offers to capitulate, which would not be unreasonable
for a losing party to have rejected.[79] Such an offer will not attract protection on
[79] Gatto v Australian Broadcasting Corporation [2021] VSC 223, [14] (Keogh J); Re Akron Roads Pty Ltd (in liq) (No 4) [2016] VSC 778, [7]-[9] (Robson J); Commissioner of State Revenue v Challenger Listed Investments Ltd (No 2) [2011] VSCA 398, [17] (Buchanan and Tate JJA and Sifris AJA); Berrigan Shire Council v Ballerini (No 2) [2006] VSCA 65, [17] (Callaway JA).
questions of costs.
C.3 Apportionment 47 Rule 63.04 provides:
(1) The Court may make an order for costs in relation to a particular question in
or a particular part of a proceeding.(2)
Where the Court makes an order under paragraph (1), the Court shall by order fix the proportion of the total costs of the proceeding which is attributable to the particular question in or the particular part of the proceeding.
This rule reflects the court’s broad discretion as to costs, particularly where there has
been mixed success. The principles relevant to apportionment were stated by the
Court of Appeal in Chen v Chan:[80]
[80] [2009] VSCA 233, [10] (Maxwell P, Redlich JA and Forrest AJA). See also Defteros v Google LLC [2020] VSC 324, [12] (Richards J); MA & J Tripodi Pty Ltd v Swan Hill Chemicals Pty Ltd [2019] VSCA 46, [152]- [154] (Kyrou, Kaye and Emerton JJA); Montclare v Metlife Insurance Ltd (No 2) [2015] VSC 574, [34] (Ginnane J).
(1)
The general rule is that costs should follow the event. Absent disqualifying conduct, the successful party should recover its costs even where it has not succeeded on all heads of claim.
(2)
The [Rules] permit significant flexibility in determining questions of costs. In particular, the Court is entitled to examine the realities of the case and will
attempt to do “substantial justice” as between the parties on matters of costs. (3)
Where there is a multiplicity of issues and mixed success has been enjoyed by the parties, a Court may take a pragmatic approach in framing the order for costs, taking into consideration the success (or lack of success) of the parties on an issues basis. Generally, if such an order is made, it is reflected in the successful party being awarded a proportion of its costs but not the full amount.
(4)
A Court may, when fixing costs in a claim where there has been mixed success, take into account complications which it considers will arise in the taxation of costs, as part of its consideration of the overall interests of justice.
(5) Where a Court determines to make an order apportioning costs, then it does so primarily as “a matter of impression and evaluation,” rather than with arithmetical precision, having considered the importance of the matters upon which the parties have been successful or unsuccessful, the time occupied and the ambit of the submissions made, as well as any other relevant matter.
(Citations omitted.)
| D. | Costs submissions as between the Cargill Parties and the Viterra Parties | |
|
claim for indemnity costs
49 The Cargill Parties submitted that Cargill Australia had been almost wholly successful
in its claims against the Viterra Parties, and that as such, in accordance with the ordinary rule that costs follow the event, the Viterra Parties should pay their costs of
the proceeding. Further, they submitted that as a result of the Cargill Offer, Cargill
Australia’s costs should be awarded on an indemnity basis from 11.00am on 30 March
2015 by operation of rule 26.08 of the Rules. Otherwise, they submitted the Cargill
Parties’ costs should be paid by the Viterra Parties on a standard basis.
50 The Cargill Parties submitted that the 3 questions relevant to an award under rule
26.08(2) were whether an offer was a genuine compromise, whether the judgment
obtained was “no less favourable”, and whether the court should “otherwise order”.
They correctly submitted that there was no controversy as to the first 2 questions, and
that the determinative question was whether the court should otherwise order.
51 Having regard to the lengthy procedural history of the proceeding, the Cargill Parties
submitted that unforeseen developments in the course of litigation, including events
that occurred after the date of an offer of compromise, rarely displace the presumptive
effect of an offer of compromise.[81]
[81] See Murphy v Westpac Banking Corporation (No 2) [2015] FCA 266, [31]-[32] (Griffiths J), cited in Hambleton v State Trustees Ltd [2016] VSC 215, [19] (Daly AsJ).
52 Further, the Cargill Parties characterised the opposing submissions as focusing on
whether the Viterra Parties’ conduct was reasonable in refusing to accept the Cargill
Offer, submitting that the authorities were clear that this alone would not be sufficient
to displace the presumption that indemnity costs would be ordered. In making this
submission, the Cargill Parties referred to Stevens v Spotless Management Services Pty
Ltd (No 2),[82] in which the Court of Appeal determined that while it was not
[82] [2016] VSCA 311.
unreasonable for the respondent in that case to reject the relevant offers of
compromise, this was only 1 consideration relevant to whether the court would
otherwise order for the purposes of rule 26.08.[83]
[83] Ibid, [27] (Kyrou and McLeish JJA and Elliott AJA). See also PCCEF Pty Ltd v Geelong Football Club Ltd [2019] VSCA 191, [25] (McLeish and Emerton JJA, Whelan JA dissenting on the question of whether the court should otherwise order for the purposes of r 26.08).
53 Further, the Cargill Parties referred to several cases concerning the policy rationale
underpinning order 26, and its relevance to whether the court will “otherwise order”.
Broadly, the purpose of the order is to encourage the compromise of litigation, and
thereby save public and private costs.[84]
[84] Grbavac v Hart [1997] 1 VR 154, 164.7-165.2 (Hayne JA, dissenting).
54 The Cargill Parties submitted that at every step in the case – “every interlocutory step,
every day of trial, every moment of preparation of judgment” – private and public
costs of the litigation were incurred as a result of the Viterra Parties not accepting the
Cargill Offer. They contended it was relevant that the Cargill Offer was made
approximately 18 months after the transaction had concluded, and approximately 4
months after the amended statement of claim was filed in November 2014.
No doubt anticipating the Viterra Parties’ response, the Cargill Parties led evidence of
information provided in correspondence between the respective solicitors between
November 2014 and February 2015. The evidence noted that this correspondence
included particulars of relevant malt contracts, the deal model prepared by Cargill for
the purposes of calculating the price Cargill Australia was prepared to pay for the Joe
White Business, estimates of loss, the volume of malt Joe White was capable of
producing within specification and the volume of malt production lost due to the
cancellations in the first 6 months after Completion.
D.2 The Viterra Parties’ submissions D.2.1 Overview 56 The Viterra Parties made 3 overarching submissions on the question of indemnity
costs.
First, the Viterra Parties drew attention to the timing and nature of the Cargill Offer,
namely that it was made only 5 months after Cargill Australia commenced the
proceeding. Further, the Cargill Offer was made “less than 3 days” after the service
of the proposed further amended statement of claim, introducing new allegations including deceit,[85] and 7 days before the further amended statement of claim was filed.
[85] The Viterra Parties referred to correspondence by which they complained to Cargill Australia about the lack of identification of the proposed amendments in the proposed further amended statement of claim, and the fact that in response Cargill Australia served an additional proposed further amended statement of claim at 4.25 pm on 25 March 2015 (being the afternoon before the Cargill Offer was served).
Accordingly, the Viterra Parties submitted that a proper appreciation of the claims
was not possible without an understanding of the particulars pleaded in support of
those claims. They submitted a key component of the particulars was the extent of the
alleged practices (“the Viterra Practices”).[86] These particulars were contained in a
[86] See Principal Judgment, [1851].
spreadsheet that the Viterra Parties contended required expert analysis. The Viterra
Parties submitted it was not possible to undertake that analysis prior to the time of
expiry of the Cargill Offer, nor to assess the litigation risks or quantum. On the latter,
they drew attention to the fact that the Cargill Parties had sought $85 million, and that
no litigant would consider payment of such a sum lightly and without being satisfied
that its position was in serious jeopardy.
Secondly, the Viterra Parties submitted that they were unable to properly assess the
veracity of the evidence provided by the Cargill Parties about the Viterra Practices and
the merits of the claim more broadly. In these circumstances, they submitted that the
Cargill Parties could not reasonably have expected them to accept the Cargill Offer.
Thirdly, more than 3 years later, Cargill Australia made substantial and material
changes to its claims in the lead up to trial and during the trial itself. The Viterra
Parties submitted that Cargill’s conduct after the Cargill Offer was relevant to the
exercise of the court’s discretion concerning whether to award indemnity costs, as
discussed further below.[87]
[87] See par 71 below.
60 The Viterra Parties broadly noted the underlying policy objectives of order 26 referred
to in Grbavac v Hart.[88] However, they noted that the Court of Appeal in a later case
[88] [1997] 1 VR 154, 164.7-165.2 (Hayne JA, dissenting), referring to Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721, 724.5 (Kirby P, Mahoney JA and Samuels AJA).
had referred to a competing objective of “equal importance”, namely:[89]
[89] Hazeldene’s Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) (2005) 13 VR 435, 441 [22] (Warren
Potential litigants should not be discouraged from bringing their dispute to the courts. It is such considerations which underlie the general rule that an order for special costs should only be made in special circumstances.
61 The Viterra Parties further submitted that, although not determinative, the critical
question in this case was whether the rejection of the Cargill Offer was unreasonable
in the circumstances.
In response to the Cargill Parties’ submission on the relevance of events after the date
of an offer of compromise, the Viterra Parties relied upon Hambleton v State Trustees
Ltd.[90] In that case, it was stated that “it would be rare, indeed extraordinary, for events
[90] [2016] VSC 215.
which took place after judgment was entered to be a relevant consideration in
determining where the liability lies for costs incurred prior to the entry of judgment”
(emphasis added).[91] The Viterra Parties submitted that, accordingly, events that occur
[91] Ibid, [20] (Daly AsJ).
after an offer of compromise expires but before judgment, which change the nature of
the case and the parties’ understanding of the case, are relevant considerations.
63 In addition, the Viterra Parties referred to South Eastern Sydney Area Health Service v
King[92] to submit that the “large imponderables” in the present case were a relevant
[92] [2006] NSWCA 2.
consideration in denying the Cargill Parties indemnity costs.[93]
[93] Ibid, [84] (Hunt AJA, with whom Mason P and McColl JA agreed).
D.2.2 Ability to assess the Cargill Offer 64 As already noted, the Viterra Parties emphasised that the further amended statement
of claim was provided to them less than 3 full days before the Cargill Offer. The
Viterra Parties submitted that these amendments and their timing constituted “special
circumstances” warranting a departure from the usual order set out in rule 26.08. The
amendments to that claim contained various further allegations.[94] The Viterra Parties submitted that the allegations of fraud and knowledge were serious matters that were
[94] See pars 19-22 above.
required to be pleaded in proper detail so the opposing parties could adequately
comprehend and answer them.
65 In furtherance of this point, the Viterra Parties referred to 2 letters sent in June 2015.
The first letter was sent by the Cargill Parties’ solicitors rejecting the Viterra Offer. In
that letter, it was stated that Cargill’s ability to assess the Viterra Offer “even on a
commercial basis” was limited in circumstances where the Viterra Parties were still in
the process of filing pleadings and discovery had not occurred. In response to that
letter, the Viterra Parties’ solicitors rejected the asserted inability of Cargill to assess
the Viterra Offer. Although it was acknowledged that discovery had not yet taken
place, it was stated that the Cargill Parties had in their possession many documents
relevant to Cargill Australia’s claim. The letter concluded:
In the circumstances, our clients do not accept the suggestion that your client’s
ability to assess the offer is limited as you suggest. However, even if your
suggestion is correct, it applies with more force to our clients’ limited ability to
assess your client’s offer.[95][95] Of course, by this time the Cargill Offer had already lapsed.
66 This correspondence was relied upon as contemporaneous evidence of the Viterra
Parties’ inability to properly address the Cargill Offer.
67 Generally, the Viterra Parties sought to highlight the disparity between their state of
knowledge and the Cargill Parties’ knowledge, in circumstances where Cargill
Australia was experienced in malt and was in possession of the Joe White Business
(including a large amount of documents and data concerning its operations and
finance). The Viterra Parties submitted that they did not have access to many of the
documents and persons that the Cargill Parties did.[96]
[96] Each of the Third Party Individuals, together with a large number of other employees engaged in the operations of the Joe White Business, were employed by Cargill immediately upon Completion occurring: Principal Judgment, fn 170.
68 In particular, the Viterra Parties submitted that the particulars in respect of the
Certificates of Analysis[97] and the use of incorrect barley varieties[98] were lengthy, complicated and could not be properly scrutinised before the Cargill Offer had
[97] Principal Judgment, [24].
[98] Ibid, [39].
expired. They referred to the fact that the expert evidence of Liam Ryan (“Ryan”),[99]
[99] Ibid, [2311].
which underlined this part of the claim, was not provided until a number of years
later.[100]
[100] For completeness, there was also lay evidence of Laura McIntyre (Principal Judgment, [74]) and Julie Testi (Principal Judgment, [92]) on this topic, but the substance of this evidence was not available while the Cargill Offer was on foot.
69 Further, the Viterra Parties highlighted that the deal model developed and used by
Cargill as part of the decision-making process leading up to the purchase of Joe
White[101] was initially provided in locked form, meaning the Viterra Parties were
[101] See, for example, Principal Judgment, [3170]-[3172].
unable to interrogate the formulas upon which the model was constructed until 2017
(when a password was provided upon agreement to a confidentiality regime).[102] It
[102] The deal model consisted of a spreadsheet of many pages, which contained a large amount of
was submitted the Viterra Parties’ position that they had limited ability to
meaningfully consider the data was borne out by the fact that it was necessary for the
court to have further calculation evidence before quantification of Cargill Australia’s
damages could be finalised.[103]
[103] Principal Judgment, [4303], [4330]-[4339], [5343]; Cargill Australia Ltd v Viterra Malt Pty Ltd (No 29) [2022] VSC 66, [2], [6]-[9].
70 Accordingly, the Viterra Parties submitted the above factors contributed to their
inability to assess the claim with any measure of confidence, which rendered their
rejection of the Cargill Offer reasonable.
D.2.3 Material changes to Cargill Australia’s case 71 The Viterra Parties contended that the Cargill Parties continued to make further
substantial changes to Cargill Australia’s case up to and during the trial, which self-
evidently were factors that could not be taken into account in the Viterra Parties’
consideration of the Cargill Offer. Specifically, they drew attention to a number of
amendments contained in the third further amended statement of claim, which was
filed on the 31st day of trial on 13 August 2018. These included:
(1) The addition of further Information Memorandum Statements.[104] (2) The introduction of the Management Presentation Statements. (3) The replacement of the particulars concerning the manner in which Cargill would seek to prove the extent of the Viterra Practices. (4) The inclusion of additional Financial and Operational Performance Representations, and the addition of particulars to all allegations concerning the Financial and Operational Performance Representations for the first time.[105] (5) Additional and replaced particulars to the falsity of the Financial and Operational Performance Representations. (6) The “introduction” of a “no transaction” case,[106] which ultimately formed the foundation of Cargill Australia’s loss as found by the court.[107] (7) The removal of the pre-contractual deceit claim in respect of Glencore.[108] (8) The introduction of particulars to the allegation of material default in
Material Contracts.[109](9) Additional and replaced particulars to the claim of loss. [104] Principal Judgment, [2146]. The additional Information Memorandum Statements are referred to at [2146(3)-(8), (14), (21)-(23), (25)].
[105] Ibid, [2826]. The additional Financial and Operational Performance Representations are referred to at [2826(13)-(15)]. To be clear, save for the particulars that had previously been provided with respect to the Information Memorandum Statements, the Operations Call Statements, the Commercial Call Statements and the Undisclosed Matters (which were alleged to have conveyed the Financial and Operational Performance Representations), there were no particulars of the Financial and Operational Performance Representations until the third further amended statement of claim introduced 10 paragraphs of particulars which identified with specificity for the first time which parts of the Information Memorandum Statements, the Operations Call Statements, the Commercial Call Statements and the Undisclosed Matters were relied upon as giving rise to the Financial and Operational Performance Representations.
[106] This was a reference to the new allegations in par 38AA of the third further amended statement of claim.
[107] See further par 75 below.
[108] The details of which are set out in par 72(1) below.
[109] Principal Judgment, [3633]-[3674].
72 Further, the Viterra Parties noted that Cargill had abandoned or materially altered a
number of issues at trial that it had pursued at various times during the proceeding.
These included:
(1) Allegations that Glencore engaged in deceit prior to entry into the Acquisition Agreement, which were abandoned in the Cargill Parties’ written opening dated 21 May 2018, and ultimately removed from the statement of claim on 13 August 2018. (2) Allegations that Viterra engaged in deceit in making the Warranty Representations, which were abandoned in written closing submissions.[110] (3) Allegations concerning breach of certain Warranties, which were abandoned in written closing submissions.[111] (4) The concession in closing submissions that there was no claim for any separate loss in respect of the Independent Expert.[112] (5) The decision during closing submissions not to rely upon the expert evidence of Greg Meredith (“Meredith”) with respect to Cargill Australia’s loss, despite having put his reports and evidence in issue up until this point of the trial.[113] (6) Claims with respect to Co-Operative Bulk, which were abandoned in
oral closing submissions.[114](7) A claim based on negligent misrepresentation, which was also abandoned in oral closing submissions.[115] [110] Ibid, [3776].
[111] Ibid, [3544], [3710].
[112] Ibid, [3908]-[3910].
[113] Ibid, [3948]-[3950]. Meredith’s evidence was said to provide a basis for claiming Cargill Australia’s loss in an amount which was substantially greater than the loss as assessed by Cargill’s other loss expert.
[114] Ibid, [3907].
[115] Ibid.
73 The Viterra Parties also referred to the fact that they sought further particulars in
relation to the allegations of deceit, and that the particulars addressed complex and
important matters of knowledge and the extent of the Viterra Practices. During oral
submissions on this application senior counsel stated the Viterra Parties “key”
submission in this regard was that the court had found in the Principal Judgment that
the Viterra Parties had no knowledge of the Viterra Practices. When it was pointed
out that there was no finding that the Viterra Parties had no knowledge, but rather
that certain knowledge of the Viterra Practices was attributed to the Viterra Parties,
their senior counsel correctly acknowledged this was what had been found. The
submission was then recast to the effect that relevant personnel of Glencore and
Viterra, “for example” Mattiske, were not aware of the Viterra Practices. This
submission was consistent with the recognition in their written submissions that
Hughes’ knowledge was so attributed by reason of his employment by Viterra Ltd,[116]
[116] It is noted that this was not the only basis upon which Hughes’ knowledge was also attributed: see, for
which allegation was added to the proposed further amended statement of claim on
23 March 2015, as redrafted on 25 March 2015 and then filed on 2 April 2015.
74 Furthermore, the Viterra Parties noted that orders for discovery were not made until
21 August 2015, 5 months after the Cargill Offer was served (and duly lapsed), and
that there was a voluminous amount of material ultimately produced in that
process.[117] The Viterra Parties also relied on the sheer volume of the transactions
[117] By way of illustration, see Cargill Australia Ltd v Viterra Malt Pty Ltd (No 2) [2017] VSC 283, [11]-[19].
involved,[118] together with the fact that the details originally and secondarily put forward by Cargill Australia were ultimately not relied upon.[119] In addition, many
[118] Reference was made to a spreadsheet containing 242,236 rows of data provided in late 2014. Further, it was noted that different data was the subject of further and better particulars on 23 February 2017, which was then ultimately replaced during the course of the trial in 2018: see Principal Judgment, [2315]-[2318].
[119] Ibid.
parts of the further amended statement of claim contained references to further
particulars being provided at a later date or before trial, meaning parts of the claim
were necessarily incomplete.[120]
[120] The Viterra Parties provided a table containing paragraphs in the further amended statement of claim that were subject to further particulars being provided. Without descending to the detail, in total 24 paragraphs were the subject of allegations which included the pleading that further particulars either would or might be provided. These were promised after discovery or other interlocutory processes, or prior to trial.
The Viterra Parties submitted that, in relation to particulars of loss, the Cargill Parties’
case was originally articulated as being on the basis that Cargill Australia would have
paid less for the Joe White Business if the Viterra Practices had been disclosed, but
then changed to the “no transaction” basis ultimately advanced at trial. With respect
to loss, they submitted no further particulars were provided prior to trial. Further, the
Viterra Parties took issue with the Cargill Parties’ submission that, based on the
particulars pleaded, the no transaction case was always Cargill Australia’s primary
case on loss. The Viterra Parties submitted that at the time of the amended statement
of claim the no transaction case was “not viable” because Cargill Australia’s case as
pleaded in terms of reliance did not incorporate the no transaction aspect.
76 It was also submitted that at the time of the Cargill Offer, Cargill Australia’s
particulars were deficient in respect of the allegations concerning reliance, the
Financial and Operational Performance Representations, and the extent of the Viterra
Practices regarding testing and misreporting of malt parameters and compliance with
barley varieties.[121] The Viterra Parties contended that the inadequacy of particulars
[121] By quoting from Cargill Australia’s particulars as then pleaded, they referred to the fact that at the time
for such matters was relevant to how they were to assess the quantification of loss as
at the date of the Cargill Offer.
77 In summary, the Viterra Parties sought to point to their inability to assess the merits
of Cargill Australia’s case, rendering their rejection reasonable. They contended the
appropriateness of ordering otherwise for the purpose of rule 26.08(2) was further
supported by the subsequent changes made to Cargill Australia’s case, which the
Viterra Parties were unable to consider at the time of the Cargill Offer. It was
submitted that when the circumstances were viewed in their totality, it was
appropriate for the court to depart from the usual position of awarding indemnity
costs to a plaintiff who has bettered an offer of compromise and to make an order
otherwise.
D.2.4 Apportionment 78 The Viterra Parties submitted that in the circumstances, costs should be apportioned,
such that the Cargill Parties should receive 75 percent of their costs in the proceeding.
They submitted that this was necessary due to the unsatisfactory manner in which the
Cargill Parties pursued their case across the life of the proceeding.
Broadly, the Viterra Parties noted that apportionment is “a matter of impression and
evaluation”, and that courts have taken a practical and broad-brush approach to the
quantification of costs attributable to specified events. When the Viterra Parties’
senior counsel was asked how 75 percent was arrived at, he referred to a “quote from
a well-known film, it’s the vibe of the case” and acknowledged there was no precision.
He submitted the reduction should not be a trivial amount given the factors that had
been identified by the Viterra Parties.[122]
[122] See further pars 71-72 above.
There was considerable overlap between the Viterra Parties’ submissions on the issue
of apportionment and their submissions referred to above concerning the Cargill
Offer. The Viterra Parties again referred to certain conduct of the Cargill Parties before
and during trial, the Viterra Parties’ partial success in the proceeding on various
points, as well as the quantum of loss awarded in favour of Cargill Australia being
significantly less that what had been sought. As to the last of these matters, they contended that the sum of $168.9 million was far smaller than Cargill Australia had
claimed and that an award of costs ought to reflect this.[123] Further, the Viterra Parties
[123] The Viterra Parties referred to the Cargill Parties’ written opening where it was claimed that Cargill
submitted that the court’s finding that the land, buildings, plant and equipment of Joe
White provided a floor on any estimate of Joe White’s value[124] rendered most of the
[124] Principal Judgment, [4305].
range of Gordon Klein’s (“Klein”)[125] valuations and the entire range of Meredith’s
[125] Ibid, [3946].
valuations unrealistic.
In relation to the Cargill Parties’ conduct before trial, the Viterra Parties first noted
that the proceeding initially commenced on a misleading conduct and contractual
basis, before deceit claims were later introduced immediately before the Cargill Offer.
They submitted that fraud allegations required detailed particulars and that it was
obvious that substantial time was then necessary to properly consider and investigate
such allegations, including allegations that were ultimately not pursued.
82 They further submitted the case was subject to material change over the course of the
proceeding, which had a bearing on the proper understanding of particulars,
including those related to loss. The Viterra Parties submitted that responding to these
major shifts in the case necessarily caused substantial costs to be incurred, and that
this should be recognised by the court. Amongst other things, they referred to the
withdrawal and replacement of a vast amount of data upon which Cargill Australia
relied in seeking to establish the existence of the Viterra Practices.[126] They also
[126] See par 74 above.
contended that no meaningful particulars were provided with respect to non-
compliance with specified barley varieties until 30 March 2017.[127] These particulars were also replaced by subsequent analyses in May 2018[128] and again in October
[127] On 30 March 2017, the Cargill Parties’ solicitors sent a letter providing further and better particulars
[128] In May 2018, a witness statement prepared on behalf of Ryan was served. This witness statement was
2018.[129]
[129] See fn 118 above.
83 Further, upon Hughes resigning from his employment with Cargill Australia (which
was prior to commencing this proceeding), the Cargill Parties entered into an
agreement with Hughes (“the Hughes/Cargill Agreement”),[130] which the Viterra
[130] Principal Judgment, [1867].
Parties submitted inhibited co-operation with other parties including the Viterra
Parties. It was submitted that the conduct of entering into such an agreement should
be taken into account in reducing the award of costs.
84 In relation to the Cargill Parties’ conduct at trial, the Viterra Parties again referred to
matters they contended were further material changes. As already noted,[131] they
Affidavit was prepared on the basis of her substantial general experience advising and
acting for clients in large commercial litigation for around 20 years, and her specific
experience in relation to gross sum costs assessments and large-scale taxations. She
gave an example of a large case in which a gross sum assessment conducted by a
judicial registrar of this court took less than 8 days.[375]
[375] Though McCudden also noted that the final determination of the 2 gross sum cost applications took approximately 2 years after the gross sum assessment was ordered. This was because of the time taken by the costs experts and the availability of hearing dates in the Costs Court.
295 The McCudden Affidavit set out her various estimates in relation to any taxation in
this proceeding. These were the result of her assessments, including that preparation
of an itemised bill of costs would take between 12 to 15 months, that such a bill would
cost in excess of $300,000 to prepare, that total costs incurred by all parties in the costs
proceeding itself could be in excess of $1,000,000, and that there would be no final
determination until the second half of 2024. Accordingly, the Cargill Parties
submitted that it was more appropriate for costs to be assessed on a gross sum basis
with the assistance of a referee appointed by the court.
As part of the Cargill Parties’ submissions in support of a gross sum approach, they
contended that if the matter were to be heard before the Costs Court it would likely
require the presiding judicial officer to become as familiar with the issues in the case
as the trial judge. The Cargill Parties agreed with observations I had previously made
about any such requirement being an inefficient use of judicial resources and that it
may place an unnecessary burden on the Costs Court if this eventuated. They
contended that it was equally not efficient for a trial judge to be conducting a detailed
hearing concerning itemised bills of costs and thus the appointment of an independent referee would be appropriate with respect to any substantive disputes as part of a
gross sum assessment.
H.2 The First Linsdell Report
The Viterra Parties disagreed with the Cargill Parties’ position. In doing so, they relied
upon an expert report of Paul Linsdell (“Linsdell”), a lawyer specialising in the
assessment of legal costs (“the First Linsdell Report”). In the First Linsdell Report,
Linsdell gave reasons as to why he disagreed with McCudden’s assessment of various
elements of that process. He concluded that an itemised bill could be prepared in less
than 12 to 15 months, that the cost of preparing evidence for the purpose of a gross
sum application would be comparable to the cost of preparing a bill for taxation, that
the estimate of $1,000,000 in costs being incurred by the parties was unrealistic, and
that the taxation process would likely be finalised prior to the second half of 2024.
298 Further, a significant amount of detail was provided about the taxation process,
including the means by which it is generally sought to keep the expense of a taxation
in check. It is unnecessary to refer to this at any length. However, Linsdell noted a
significant benefit to the taxation process was that a costs registrar does not need to
analyse the issues of the proceeding akin to the analysis conducted by a trial judge. It
was explained on the basis that the Costs Court is not required to address the
underlying issues, but instead is focused on making an appropriate allowance for the
work undertaken. This was said to be enhanced by the utilisation of the court’s scale
of costs, which provides an objective benchmark for determining the reasonableness
of costs by reference to the specific activity or document in question.
299 Furthermore, the First Linsdell Report addressed the nature of gross sum assessments.
Based on his experience, he noted that gross sum assessments are not cheaper, quicker,
or necessarily simpler than having the matter proceed to taxation. He explained that
disputes often arise in gross sum assessments in relation to the appropriate
methodology, loadings and arbitrary reductions. Nor, in Linsdell’s opinion, was it
appropriate for a special referee to be appointed in preference to the matter being referred to the Costs Court. In this regard, he noted that Victoria is the only
jurisdiction in Australia with a specialist court which deals exclusively with costs,
with those appointed to the position of costs registrars being highly experienced and
specialised judicial officers.
H.3 The Cargill Parties’ response to the First Linsdell Report 300 In response to the First Linsdell Report, the Cargill Parties filed written submissions
on 16 March 2022 and observed that Linsdell had not been briefed by the Viterra
Parties’ solicitors to provide his opinion on the most appropriate method of
assessment of costs. Rather, it was contended his opinion had been confined to
whether the Cargill Parties’ proposed method was appropriate, and whether the
Viterra Parties should oppose that proposed method.
301 Amongst other things, the Cargill Parties also submitted that Linsdell had not
provided his own opinion on the time and cost estimate of each step required in a
taxation, but instead had simply disagreed with the estimates that had been provided
in the McCudden Affidavit.
302 Further, at the hearing of this application the Cargill Parties submitted that the court
should not accept what was stated in the First Linsdell Report about the lack of any
need for the judicial officer engaged in any taxation to become familiar with the issues
in the proceeding. They submitted that if put in contest, for an evaluation to occur of
whether costs were reasonable and proportionate, the Costs Court would need to be
familiar with each fact and issue the subject of the controversy.
H.4 The Second Linsdell Report
On 28 March 2022, Linsdell provided a supplementary report (“the Second Linsdell
Report”). Linsdell acknowledged that in the First Linsdell Report he did not state his
opinion on the most appropriate method of assessment of costs in the proceeding. By
the Second Linsdell Report, he “confirmed” that in his opinion the most appropriate
method of assessment was a taxation of costs in the Costs Court. Further, based on his experience, Linsdell estimated that a taxation would take between 13½ and 22
months, and would cost the Cargill Parties in the order of $299,200 and the Viterra
Parties approximately $176,918.
H.5 The Third Party Individuals’ positions 304 Each of the Third Party Individuals (including Hughes) adopted the Cargill Parties’
position that it was appropriate for the court to assess costs payable by the Viterra
Parties on a gross sum basis, with the assistance of a referee.
H.6 Analysis 305 In Masters Home Improvement Pty Ltd v North East Solution Pty Ltd,[376] the Court of
[376] (2017) 372 ALR 440.
Appeal set out principles relevant to the court’s assessment of expert evidence,
namely:[377]
[377] Ibid, 549 [420]-[421] (Santamaria, Ferguson and Kaye JJA).
(1) The court’s role is to evaluate expert evidence critically. (2) Where the evidence is cogent, it should not be ignored. (3) It is not part of the court’s role “to bring a third set of opinions into the arena”, and judges should not take on the role of an expert.[378] (4) In some circumstances, it may be necessary for the court to make adjustments to, or disregard the conclusion reached by an expert if the expert’s opinion is not cogent, or is shown to be flawed or based on an incorrect assumption. [378] See also Brewarrana Pty Ltd v Commissioner of Highways (No 2) (1973) 6 SASR 541, 544.9-545.4 (Wells J).
306 Further, where an expert has not been cross-examined, prima facie there is limited
scope for a judge to not accept unchallenged evidence.[379]
[379] M & EM Hull Pty Ltd v Thompson [2001] NSWCA 359, [21] (Rolfe AJA, with whom Sheller JA and Davies AJA agreed).
On the whole, I consider that Linsdell’s largely unchallenged evidence was cogent.[380]
[380] There was no application by the Cargill Parties to cross-examine Linsdell. His evidence was only challenged to the extent that the McCudden Affidavit might be said to contradict it and that the Cargill Parties made submissions contrary to it.
He has significant experience as a costs lawyer and in the preparation of assessments
of costs. There was no issue of his qualifications or his suitability to give expert
evidence on costs. His evidence was that a gross sum costs application would not
necessarily be more efficient, simpler or cheaper than taxation. Neither the First
Linsdell Report nor the Second Linsdell Report carried an obvious flaw in reasoning
or assumption. None was suggested (beyond those submissions raising what the First
Linsdell Report did not address). The Second Linsdell Report directly addressed the
alleged deficiencies.
308 Tellingly, the Cargill Parties chose not to put forward alternate expert evidence to cast
doubt on any of Linsdell’s reasoning, assumptions or conclusions. The fact that they
had not done this was raised with them expressly during the course of argument.
There was no application to adjourn the hearing so that contrary expert evidence
might be led. Rather, the Cargill Parties expressly acknowledged they had not put on
expert evidence, had decided not to cross-examine Linsdell and had chosen instead to
rely on the McCudden Affidavit. It must be said at once that the McCudden Affidavit
was sworn by a solicitor who, while very experienced in commercial litigation, is not
a costs lawyer or an expert (relevantly), and who could only give limited evidence on
the topic.[381] In short, the position they adopted was simply that, notwithstanding the
[381] Without being critical, it should also be noted that McCudden’s recollection of her experiences on some
Linsdell Reports, when all matters they had referred to in their submissions were
considered the court ought to determine that the gross sum approach should be
preferred.
In these circumstances, I do not propose to reject Linsdell’s evidence. Based on the
evidence before the court, I accept that the most appropriate method for the
assessment of costs in this proceeding is by a taxation in the Costs Court.[382] In reaching this conclusion, I have not ignored the possibility that the judicial officer
[382] Pursuant to r 63.05(a), unless the court otherwise orders, costs are to be taxed in the Costs Court by a costs judge. A costs judge may direct the costs be taxed by, amongst others, a judicial registrar or a costs registrar: r 63.05(b).
responsible for the taxation may have to become familiar with some of the issues in
the case (as suggested by the Cargill Parties) in determining certain questions of
reasonableness and proportionality in relation to costs. However, as explained by
Linsdell, this will often not be necessary and, even if it is on occasions, it does not
nullify the many other benefits identified by Linsdell that are derived from the
Supreme Court uniquely having its own dedicated Costs Court.
310 Out of an abundance of caution, it is noted that nothing in these reasons is intended
to fetter the manner in which the Costs Court determines the appropriate methods or
steps to be taken in relation to the taxation to be conducted.
Observations relevant to the taxation of the Cargill Parties’ costs
As part of the Cargill Parties’ submissions in support of a gross sum assessment, they
indicated that they would be seeking costs other than according to scale. They also
provided the basis upon which they contended that the court should award costs
above those based on the court’s scale of costs.[383] When this was raised during
[383] The Cargill Parties referred to the fact that they were represented by large commercial law firms, as were the Viterra Parties. They noted that none of the legal practitioners representing the Cargill Parties charged according to scale. They also referred to publications indicating that the scale of costs does not reflect current market practices. They further submitted that as both sets of parties were equally represented by large experienced teams of lawyers, an assessment by hourly rate was unlikely to result in any unfairness between the key parties. In light of the complexity of the proceeding, including the number of issues, its length and size, they submitted that scale costs were not an appropriate measure by which an assessment of costs should be made.
argument, the Cargill Parties’ senior counsel stated that no ruling was presently
sought on this issue. The Cargill Parties’ position was that the issue of whether or not
they were entitled to costs greater than those that would be provided under the court’s
scale of costs ought to be determined as part of the gross sum assessment, or
alternatively if a taxation were ordered then as part of the taxation. The Viterra Parties
agreed with this approach. Also, belatedly in reply submissions, the Cargill Parties
foreshadowed making further submissions on the issue.[384] As a result, I indicated that
I would not make any binding determination on the issue.[384] At an earlier point, the Cargill Parties stated that if I saw it as efficient to determine whether the scale of costs should apply, then I should do so. They also made the subsequent observation that as the trial
312 However, in light of the fact that the question of costs is now to proceed by way of a
taxation, as the judge who has had the management of this case from the outset, it is
appropriate that some further observations are made to assist the Costs Court
(although nothing said is intended to be determinative of any subsequent ruling in the
Costs Court).
313 As part of the Principal Judgment, I observed that the key parties in this proceeding
left no stone unturned.[385] In hearings since the Principal Judgment was delivered, this
[385] Principal Judgment, [5332].
observation has been referred to with apparent approval by the parties. In any event,
it may be said without controversy that the manner in which this case was conducted
meant that the costs incurred collectively by the successful and unsuccessful parties
were in the many tens of millions of dollars.[386]
[386] The Cargill Parties informed the court that their costs were in the order of $32 million. In relation to the costs up to February 2022: for Youil, Wicks and Argent collectively, they had exceeded $8.2 million; for Stewart they had exceeded $2 million. The remaining parties did not give such information to the court.
314 Just a couple of examples will be given to show the steps the court took to try to curtail
the costs incurred in this proceeding.[387]
[387] See also Cargill Australia Ltd v Viterra Malt Pty Ltd (No 25) [2020] VSC 172.
315 On 5 October 2017, more than 8 months before the trial commenced, it was ordered
that no further interlocutory applications could be made without leave of the court.
On that day there were no fewer than 5 interlocutory applications returnable for
adjudication. Further, with respect to discovery and related issues alone, the Cargill
Parties had already spent approximately $3 million in costs and the Viterra Parties
approximately $4.1 million in costs.[388] It was expressly stated at the time that the
[388] The costs that had been incurred in this regard by the third parties were not available at that time.
requirement of leave was being imposed as part of an attempt by the court to ensure
compliance with the overarching obligations under the Civil Procedure Act by limiting the ongoing flurry of interlocutory applications in this proceeding.[389] Regrettably, this
[389] Cargill Australia Ltd v Viterra Malt Pty Ltd (No 5) [2017] VSC 798, [10].
imposition of the requirement of leave did not have the desired effect as the key parties
continued to engage in interlocutory disputes on an ongoing basis, and simply added
the seeking of leave to the process.
316 On 21 August 2018, some 2 or so months into the trial, I made the observation that it
was highly unusual in my previous experience as a barrister and as a judge to have
discovery applications every week during a trial. On that occasion, I suggested it
might be appropriate to require counsel to confer with a view to resolving any issues
before an interlocutory application could be brought. I expressed my dissatisfaction
with the practice of the solicitors for the Cargill Parties and the Viterra Parties
engaging in extensive correspondence rather than seeking to facilitate a resolution of
ongoing disputes. Also, after hearing the interlocutory dispute outside court hours
(the application commenced at 4.00pm),[390] and then soon after giving the ruling on
[390] Most of the interlocutory applications were being dealt with outside court hours, usually by different teams of lawyers to those that were appearing and attending at trial.
that application, I reserved the costs of the application. I indicated that I would not
award costs to the successful party on such applications made during the course of
the trial any longer as I wanted the parties to conduct such matters on the basis that
they were not going to run things to win and get costs; rather they were to only run
applications that were truly necessary, having regard to obligations of the parties to
co-operate and seek to resolve things without troubling the court.[391]
[391] During the hearing of this application, I expressly referred to the fact that this had been the approach taken. No party sought to deal with the costs of any particular interlocutory application separately.
317 Upon the continuation of the trial the following morning, I made reference to letters
going back and forwards from the respective solicitors for the Cargill Parties and the
Viterra Parties and suggested I wanted some means by which sensible communication
could occur. These comments were borne out of a frustration with how things had
transpired to that time. Senior counsel for both groups of parties endorsed the
suggestion. Indeed, the Viterra Parties’ senior counsel went so far as to say that, if the
court’s direction was an implied prohibition upon a flurry of solicitors’ letters being
exchanged, then it was fully supported. From that point in time, the issuing of any
interlocutory application was also subject to counsel briefed on the application
conferring before an application for leave could be made. Subsequent directions were
also given about the solicitors refraining from sending written correspondence and
the requirement of the parties’ representatives to discuss matters directly with each
other.
318 By way of further example, on 18 March 2019 (being the 77th day of the trial), during
yet another discovery dispute, I again felt compelled to give directions to the parties
to attempt to deal with matters in a more efficient and productive way. On that
occasion, I expressed the view that the conduct of the parties was completely
unacceptable.[392] I noted that I had had to read through the relevant correspondence,
[392] This comment was directed to the Cargill Parties and the Viterra Parties only.
including all the pejorative language that had been used, and that it had to stop.[393] I
[393] This did not transmogrify the manner in which counsel dealt with each other, which remained appropriate throughout despite the obvious challenges of a long-running and onerous trial.
also noted that I had asked the parties “so many times” to try and work together
constructively consistent with their obligations under the Civil Procedure Act.[394]
[394] See also Principal Judgment, fn 4826.
319 I raise these matters again now because they help to provide the context in which any
taxation of costs is to be conducted in this proceeding. And in this context, while
accepting that the issues raised in this proceeding were complex, I can see no valid
reason why there ought to be any departure from scale costs. The fact that the Cargill
Parties (like the Viterra Parties) chose to conduct the litigation with a combative and
an apparently no-expense-spared approach to nearly all the issues that were raised
provides no good reason to depart from a regime which imposes some objective limit
on what could be considered reasonable and justifiable in the circumstances. In my
view, there would be a risk of incentivising lawyers (and litigants with deep pockets)
to incur costs without regard to the obligation to focus on the real issues if it was
thought that, upon success, those costs would be fully or substantially recoverable.
Although it is ultimately a matter for the Costs Court, I thought it should be made clear that, as the trial judge who observed first-hand the manner in which the case was
conducted, the mere fact that the case was lengthy and complex does not appear to be
a good reason in itself to depart from scale.[395]
[395] It has been publicised that the council of judges of this court have approved a proposal from the legal costs committee of the court for a limited review concerning the use and utility of the scale of costs in Victorian courts. The outcome of that review is yet to be announced. However, in light of approval of the proposal there is a real prospect that the scale of costs will be replaced by another form of costs taxation or assessment. If that were to occur, it may or may not apply to this proceeding depending upon whether any new regime is to be introduced to all proceedings or only proceedings commencing after its introduction. Whatever be the position, any taxation ruling or assessment of the costs in this proceeding ought to be informed by the matters that have been raised above.
320 Further, given the way in which so many interlocutory issues were raised, the Costs
Court will also need to look very carefully as to whether steps taken, including lengthy
and self-serving pieces of correspondence, were reasonable. In many instances during
the trial, I formed the strong view that much expense (and time, including the court’s
time) could have been saved if a more co-operative approach had been adopted.
| J. | Conclusion and form of orders |
321 For the reasons stated above, as between the Cargill Parties and the Viterra Parties,
the Cargill Parties will be awarded 92.5 percent of their costs of and incidental to the
proceeding (including reserved costs) on a standard basis, which costs are to be taxed
in default of agreement.
322 And as between the Viterra Parties and the Third Party Individuals other than
Hughes, each of Youil, Wicks, Stewart and Argent will be awarded costs on an
indemnity basis for all their costs of and incidental to the proceeding (including
reserved costs), to be taxed in default of agreement.
323 Accordingly orders will be made substantially as follows:
The Cargill Parties’ costs
1. The Viterra Parties pay 92.5 percent of the Cargill Parties’ costs of and
incidental to this proceeding, comprising all reserved costs and:
(1) Cargill Australia’s costs of its claim against the Viterra Parties. (2) Cargill Australia’s costs of the counterclaim brought by the Viterra Parties.
(3) Cargill, Inc’s and Joe White’s costs of the Viterra Parties’ third party notice. 2. The costs referred to in order 1 are to be taxed on a standard basis in default of agreement.
The 4th, 5th, 6th and 7th third parties’ costs
3. The Viterra Parties pay the costs of each of Youil, Wicks, Stewart and Argent of and incidental to this proceeding, including reserved costs, to be taxed on an indemnity basis in default of agreement.
4. The question of costs as between all parties to the proceeding be referred to mediation.[396]
[396] A standard form of mediation will be made after hearing submissions from the parties as to its precise form. The parties previously agreed that the matter should be referred to mediation once these reasons were delivered.
allegations of fraud), the pleading stated further particulars “may” be provided after discovery or other
interlocutory processes.
of detail in these somewhat “elaborate reasons”. In the interests of efficiency and with this direction
from the Court of Appeal in mind, they do not purport to be expressly exhaustive of all the matters
raised.(Warren CJ, Maxwell P and Harper AJA).
CJ, Maxwell P and Harper AJA), citing Oversea-Chinese Banking Corporation v Richfield Investments Pty
Ltd [2004] VSC 351, [60] (Redlich J).and Elliott AJA); Hazeldene’s Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) (2005) 13 VR
435, 441 [23] (Warren CJ, Maxwell P and Harper AJA). See also PCCEF Pty Ltd v Geelong Football Club
Ltd [2019] VSCA 191, [25].also Secretary to the Department of Transport v Provan’s Timber Pty Ltd [2020] VSCA 258, [26] (Tate, Kyrou
and McLeish JJA).
Kyrou and McLeish JJA); Victorian Workcover Authority v O’Brien [2017] VSC 68, [6]-[7] (J Forrest J);
Hazeldene’s Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) (2005) 13 VR 435, 441-442 [23]-
[24], 443 [30] (Warren CJ, Maxwell P and Harper AJA).
Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) (2005) 13 VR 435, 440 [19].
CJ, Maxwell P and Harper AJA), citing Oversea-Chinese Banking Corporation Ltd v Richfield Investments
Pty Ltd [2004] VSC 351, [60] (Redlich J).information based on, amongst other things, information provided to Cargill, Cargill’s own information
and assumptions and forecasts up to 2033 based upon such information.
Meredith’s valuations of the true value of Joe White were lower than those of the other experts.
example, Principal Judgment, [2660]-[2672], [3106]-[3108]. On the second day of hearing, lead senior
counsel for the Viterra Parties correctly acknowledged that Hughes’ knowledge at relevant times was
the Viterra Parties’ actual knowledge by reason that Hughes was an executive director of each of the
relevant companies up until December 2012.
of the Cargill Offer, Cargill Australia’s claim was based on its “present best assessment” of the non- compliance with customers’ specifications, which assessment was that it “affected all customers and at
least 50% of the total volume of malt produced”.
Australia’s loss was between $330 million and $373 million as at the date of the Acquisition Agreement
and $327 million and $371 million as at the date of Completion. These figures were based on Meredith’s
assessment, which assessment was ultimately abandoned: see fn 113 above.
relating to barley varieties, together with 2 annexures. The particulars related to in excess of 4,000 transactions of Joe White for the period from 1 January 2010 to 31 October 2013. The information included details of barley varieties alleged to have been specified, barley varieties alleged to have been used and barley varieties alleged to have been reported. An annexure consisting of 60 pages contained 11 columns of information in relation to each transaction.
based on 5 spreadsheets, together with instructions given by the Cargill Parties’ solicitors on 17 April
2018.
“the fact of analytical uncertainty”. This issue has already been addressed in an earlier ruling and need
not be discussed further here: Cargill Australia Ltd v Viterra Malt Pty Ltd (No 25) [2020] VSC 172, [42],
[79]-[81].Viterra Practices, and then the limited admissions ultimately made: see also fn 210 below.
illustration only. The Cargill Parties’ senior counsel explained this was relied upon to show that the
Viterra Parties knew, at least, what had been disclosed in October 2013.
Parties’ solicitors over an extended period from 2 November 2017 to 11 August 2018. The first of those
letters referred to the fact that Viterra had retained a copy of the data and that it was no longer available
to Cargill because of a “malware issue”. Though by this letter it was not sought that the data be
produced by Viterra, it was suggested Viterra could access the data for the purposes of considering a proposal to provide a certificate at trial pursuant to s 50 of the Evidence Act 2008 (Vic). In response, the
Viterra Parties’ solicitors objected to the proposed certificate and stated that the Viterra Parties had not
retained “access” to the database. In a subsequent letter, the Viterra Parties’ solicitors stated that the
database had been “decommissioned”. On that basis, they asserted that there had been no failure to
comply with discovery obligations. They “expressly” rejected any suggestion that they were
“somehow obligated” to provide the database to Cargill a second time. The letter then suggested
Cargill had failed in its discovery obligations before the ransomware attack occurred and that as a result
the Viterra Parties “and other parties have been deprived of the opportunity to inspect or copy the
relevant data” before it was lost by the Cargill Parties. A response from the Cargill Parties’ solicitors
rejected any failure on the part of Cargill and sought confirmation the database had not been destroyed. In addition, they enquired as to what steps were required in order for the Viterra Parties to gain access to it. No response was provided by the Viterra Parties. The next letter in the chain was from the Cargill
Parties’ solicitors in serving a notice to produce which required production of the database. The letter
noted the lack of response to the previous letter and the reasons set out suggested access to the database
could be easily achieved in a short period of time. In a response 10 days later from the Viterra Parties’
solicitors, they disputed that there was any obligation to produce the database. In this regard, the letter
stated “[t]he decommissioning process involves removal of the [Laboratory Information System]
production, test and development servers from our clients’ IT systems. Accordingly, our clients are not
in a position to produce the [Laboratory Information System] database because it is not capable of
production.” The letter also noted that the notice to produce was served at the end of the fourth week
of trial and suggested any request to take steps to recover the data would be unreasonable. In short,
the Viterra Parties refused to assist. After a further letter from the Cargill Parties’ solicitors, the Viterra
Parties’ solicitors were again instructed in substance to refuse to assist in the production of the data.
Further, it was stated recovery of the data would involve significant time and expense without any assurance the data could be restored in a usable form. After referring to authority on this point, it was stated the notice to produce had been served too late and was liable to be set aside. Ultimately, the data was produced during the trial at the direction of the court given on 27 August 2018. On the preceding hearing date (being Thursday 23 August 2018), the Viterra Parties were directed to get instructions on the production of backup tapes of the databases and a further direction was given on 24 August 2018 to facilitate production. On 27 August 2018, the court was informed that Viterra had provided the database to Cargill in April 2014 pursuant to the Acquisition Agreement. The court was also told that
the Viterra Parties had not discovered the data because they were “excluded documents” under the
discovery protocol that had been agreed, the documents that contained the data already being in the possession of the Cargill Parties. However, contrary to what had been stated over many months in previous correspondence about the time and difficulty of producing the data, the court was informed that the backup tapes could be made available the following day. However, the Viterra Parties maintained their objection to producing the data on the basis that the application was made so late. After some further administrative steps were attended to, on 29 August 2018 the court ordered that the Viterra Parties were required to produce the relevant files from the Laboratory Information System by 2.00pm on 29 August 2018, which duly occurred.
Judgment, [3710].
13 VR 435, 438-439 [10] (Warren CJ, Maxwell P and Harper AJA).
schedule D to the statement of claim (which were the documents Cargill Australia relied upon at that time to establish allegations of knowledge). These were forwarded on 27 March 2015. However, the size and complexity of the case meant that this situation could not be remedied by promptly requesting a handful of critical documents from the Cargill Parties. The time involved to make a proper assessment of the information required, and then to analyse that information, far exceeded the time available while the Cargill Offer was open.
issue about the amount payable if the plaintiff was successful (at [6]), it was “an all or nothing case”, there was “nothing in the way the case was pleaded or in the materials subsequently discovered and
served which should have made one party or the other especially confident or doubtful as to its
prospects” (at [27]) or that the offer of compromise was made pre-emptively at a time when the
opposing party was not in a position to meaningfully assess the offer (at [28]).
applications that the no transaction case came as no surprise at the start of the trial, though it was still
maintained it was not pleaded at that time.1. Cargill’s loss case with respect to the claimed contraventions of section 18 of the
[Australian Consumer Law], negligent misrepresentation, deceit and breach of contract now
relies solely on a claim that Cargill Australia should be entitled to a measure of damagesequal to the difference between the purchase price of $420 million and the true value of Joe
White at the time of acquisition. It has run a “no transaction” case.
2. Cargill had previously claimed loss based on other measures, which have now all been abandoned. Specifically: (a) Cargill also pleaded in the alternative, for the purpose of its [Australian Consumer Law], negligent misrepresentation and deceit claims, that loss be: (i) measured as the difference between the Purchase Price and the price that Cargill Australia would have paid for Joe White if the representations had not been made; (ii) determined having regard to the value of Joe White at the date of judgment as assessed by expert evidence (albeit denying that this was the appropriate measure); (b) Cargill had also previously pleaded in the alternative, that Cargill had suffered loss relating to lost production and additional expenditure. However, those claims were withdrawn when it filed an amended pleading on 13 August 2018.
apportionment from some of the other issues to be determined. On reflection, I decided not to
determine the issues raised on the first day’s hearing until I had also heard the arguments raised (some
of which overlapped) at the later hearing.
to establish the existence of the Alleged Industry Practices (Principal Judgment, [1860]) and the consequential delays and costs: Principal Judgment, issue 13. It is unnecessary to address these submissions separately, beyond stating they have been taken into account in circumstances where the Cargill Parties were the successful parties and as a result of these reasons will have an award of costs in their favour.
as Cargill led no other evidence to contradict it and did not invite the court to reject this witness’s
evidence in their closing submissions.
was made to Meredith’s evidence where he was asked during cross-examination about a valuation
based on the realisation of Joe White’s assets. In this evidence, he rejected the evidence that had previously been given by Cargill, Inc’s technical accounting director. However, it was never put to him
(or Klein) that in light of this further valuation evidence his (or Klein’s) valuations were unrealistic.
Based on the evidence that I have been referred to on this point, it appears highly likely that if Meredith had been presented with that proposition he would have rejected it and (if given the opportunity) would have explained why. In the absence of this evidence or any opportunity for the topic to be fairly raised with them, it is not appropriate for the court to draw any conclusion about the valuations of Meredith or Klein being unrealistic to the extent that they countenanced a valuation below $238 million.
being granted to file and serve the amended statement of claim and the Viterra Parties’ costs thrown
away in leave being granted to file and serve the third further amended statement of claim, however,
otherwise, the position was governed by rule 63.17.118 above. In addition, there is still the issue of Cargill Australia’s costs of going to the expense of
putting such particulars forward and then withdrawing substantial parts of them but seeking to receive
those costs.bordering on fanciful to suggest that the Third Party Individuals could be held to have represented that Warranty 12 in its final form was true and correct, inferentially reasoning backwards from their
purported verification of the originally proposed Warranty 12.”
by Harper J in Ugly Tribe Co Pty Ltd v Sikola [2001] VSC 189, [7]; in fact in relation to this specific matter Harper J referred to another case of J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (WA Branch) (No 2) (1993) 46 IR 301, but nothing turns on this.
Individual “I told them the substance of what the warranty provided and asked them whether this was
correct …”. In other words, not only was Wilson-Smith’s account of what he said not set out, he did
not even purport to state the substance of what he said but simply referred to the substance of what
each Warranty provided in seeking to convey what was said.part of the Viterra Parties’ case.
[100]-[115], [144], [216], [223], [236], [238]–[239]. See also: Cargill Australia Ltd v Viterra Malt Pty Ltd (No
25) [2020] VSC 172, [40]-[45], [74], [95]-[96] for examples of the level of involvement by this in-house lawyer; and the Principal Judgment, [3005] where the Viterra Parties themselves acknowledged that they are sophisticated corporate entities who are well-resourced internally.
issues was a little sketchy.
judge I was the “best person” to make a determination about whether scale or some other approach
should apply.
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