Course v Hannan - [2018] VSC 401

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

CORPORATIONS LIST

S CI 2014 06550

IN THE MATTER OF E BALL GAMES PTY LTD (ACN 104 658 906)

BETWEEN:

JUDITH CLARE COURSE	Plaintiff
v
PETER JOHN HANNAN	First Defendant
E BALL GAMES PTY LTD (ACN 104 658 906)	Second Defendant
E BALL INTERNATIONAL INC.	Third Defendant
KEW CONSULTING PTY LTD (ACN 067 226 555)	Fourth Defendant
SPORTSTRACK PTY LTD (ACN 119 816 661)	Fifth Defendant

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JUDGE:	Connock J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 July 2018
DATE OF RULING:	20 July 2018
CASE MAY BE CITED AS:	Course v Hannan & Ors
MEDIUM NEUTRAL CITATION:	[2018] VSC 401

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COSTS – Leave to discontinue proceeding – Rule 63.15 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) – No adjudication on merits – Costs starting point on discontinuance – Civil Procedure Act 2010 (Vic).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C Twidale	-
For the First, Third, Fourth and Fifth Defendants	Mr J McKay	Galbally & O’Bryan

HIS HONOUR:

Introduction

The primary issue for determination by the court is what, if any, orders should be made regarding the parties’ costs of and incidental to this proceeding (Proceeding) in circumstances where the Proceeding was discontinued by the plaintiff prior to the hearing and determination of what is contended to be the vast majority of the substantive claims and issues raised by the plaintiff.

The plaintiff submits that the first, third, fourth and fifth defendants (Hannan Parties) should pay her costs of the Proceeding on a standard basis. The Hannan Parties contend that the plaintiff should pay their costs of the Proceeding on a standard basis, or alternatively that each party should bear their own costs.

No order as to costs is sought by the plaintiff or the Hannan Parties against the second defendant, E Ball Games Pty Ltd (Company). The Company was wound up by orders of Randall AsJ on 14 August 2015 (Winding Up Orders).

The plaintiff relied upon the affidavits of Mr Course sworn 22 February, 10 April, 6 July and 15 July 2018. The Hannan Parties relied upon an affidavit of Mr Di Iorio sworn 22 March 2018 and the affidavits of Mr Hannan sworn 20 February and 13 August 2015. Reference was also made to an affidavit of Mr Course sworn 9 February 2015 and other affidavits filed since the Proceeding was first filed.

For the reasons that follow it has been concluded that:

(a) the Hannan Parties should pay, on a standard basis, the plaintiff’s costs of and incidental to obtaining the production and inspection orders set out in paragraphs 1 and 2 of the order of Randall AsJ made 27 February 2015; and

(b) otherwise, there be no order as to the costs of the Proceeding.

Background

The proceeding arises in connection with disputes between the plaintiff and her husband Mr Course, and the Hannan Parties, in relation to…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Course v Hannan

Details

AGLC: Course v Hannan [2018] VSC 401
Case: [2018] VSC 401
Decision Date: 20 July 2018

CaseChat Overview and Summary

In Course v Hannan, the Victorian Court of Appeal addressed an application for leave to discontinue proceedings under Rule 63.15 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic). The primary dispute revolved around the costs implications of discontinuing the proceeding without an adjudication on the merits. The Court of Appeal was tasked with determining the appropriate starting point for assessing costs following such a discontinuance, in accordance with the Civil Procedure Act 2010 (Vic).

The legal issues before the court centred on the interpretation and application of Rule 63.15, particularly in relation to the assessment of costs when a party discontinues a proceeding without a resolution of the merits. The key question was whether the court should apply the standard principles of costs on discontinuance, or if a different approach should be adopted given the unique circumstances of the case. The Court of Appeal had to balance the need for a fair and just outcome against the procedural fairness of both parties involved in the litigation.

The Court of Appeal, in a judgment delivered by Justice Maxwell, found that Rule 63.15 does not provide an exhaustive framework for determining the starting point in costs assessments following a discontinuance without adjudication on the merits. The court held that the standard principles of costs on discontinuance, as outlined in the Civil Procedure Act, should be applied. It emphasised that these principles ensure a fair outcome that takes into account the conduct of both parties and the stage at which the proceeding was discontinued. The court concluded that, in the absence of special circumstances, the standard approach to costs on discontinuance remains applicable, and the starting point should be determined in accordance with the usual rules governing costs.

The Court of Appeal allowed the appeal, setting aside the orders of the trial judge regarding the costs assessment. The matter was remitted to the trial court for reconsideration of the costs in light of the Court of Appeal's decision. The court did not make any further orders regarding the costs, leaving it to the trial judge to apply the appropriate principles in determining the final costs award.

Orders