Cripps v Vakras [No 2] - [2014] VSC 352

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
MAJOR TORTS LIST

S CI 2011 1484

ROBERT RAYMOND CRIPPS & ANOR	Plaintiffs
v
DEMETRIOS VAKRAS & ANOR	Defendants

S CI 2012 4407

DEMETRIOS VAKRAS & ANOR	Plaintiffs
v
ROBERT RAYMOND CRIPPS & ANOR	Defendants

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JUDGE:	KYROU J
WHERE HELD:	Melbourne
DATE OF HEARING:	Decision on interest and costs made ‘on the papers’. Written submissions received on 3 and 4 July 2014.
DATE OF JUDGMENT:	28 July 2014
CASE MAY BE CITED AS:	Cripps v Vakras [No 2]
MEDIUM NEUTRAL CITATION:	[2014] VSC 352

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COSTS — Defamation and contract proceedings heard together — Plaintiffs in defamation proceeding successful in that proceeding but unsuccessful in contract proceeding — Whether costs order in favour of those plaintiffs should be on standard or indemnity basis — Quantum of allowance for those plaintiffs’ lack of success in contract proceeding — Three preconditions for award of indemnity costs under Defamation Act 2005 s 40(2)(a) — Costs awarded on indemnity basis with allowance of 20 per cent.

INTEREST — Interest of three per cent payable on damages awards.

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APPEARANCES:	Counsel	Solicitors
For Mr Cripps and Redleg Museum Services Pty Ltd	Mr C J Dibb	Efron & Associates
For Mr Vakras and Ms Raymond	Mr D Gilbertson SC with Ms S Porter	Media Arts Lawyers

HIS HONOUR:

These reasons should be read in conjunction with my principal judgment.[1] Abbreviations and definitions in the principal judgment are also used in these reasons.
[1]Cripps v Vakras [2014] VSC 279 (20 June 2014).

With the consent of the parties, I have decided the issues relating to interest and costs ‘on the papers’ based on the parties’ written submissions. The Defamation Defendants’ submissions are dated 3 July 2014 and those of the Defamation Plaintiffs are dated 4 July 2014.

The following matters are common ground between the parties. First, that a single order for costs should be made in the two proceedings. Secondly, the form of the order should be that the Defamation Defendants pay the Defamation Plaintiffs’ costs of both proceedings, with a percentage allowance for the Defamation Defendants’ success in the Contract Proceeding.

I agree that a single order for costs is appropriate because of the substantial overlap in the evidence that was adduced in the two proceedings. As most of the evidence and legal argument related to the Defamation Proceeding, the costs order should reflect the outcome of that proceeding rather than that of the Contract Proceeding. Further, Mr Cripps was successful in the Contract Proceeding and much of the evidence that related exclusively to that proceeding had no connection with the narrow ground upon which the Defamation Defendants were successful against Redleg in that proceeding. It follows that the order for costs will be in favour of the Defamation Plaintiffs.

The key issues in dispute between the parties are whether the costs order should be on the standard basis or on the indemnity basis, and the quantum of the allowance.…

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 Cripps v Vakras [No 2]

Details

AGLC: Cripps v Vakras [No 2] [2014] VSC 352
Case: [2014] VSC 352
Decision Date: 28 July 2014

CaseChat Overview and Summary

Cripps v Vakras [No 2] involved a complex dispute between the parties, with the primary issues being defamation and contract law. The plaintiffs sought damages for defamation and a declaration that the defendants had breached contractual obligations. The proceedings were heard together in the Supreme Court of Queensland. The defamation claim was successful, but the contract claim was unsuccessful.

The legal issues before the court included determining the appropriate basis for awarding costs to the plaintiffs. Specifically, it was necessary to decide whether the costs should be awarded on a standard or indemnity basis. Additionally, the court had to consider the appropriate quantum of costs for the plaintiffs' lack of success in the contract proceedings. The court considered the three preconditions outlined in section 40(2)(a) of the Defamation Act 2005 for the award of indemnity costs.

The court determined that the costs should be awarded on an indemnity basis, but with an allowance of 20 per cent due to the plaintiffs' lack of success in the contract proceedings. This decision was based on the three preconditions for indemnity costs under the Defamation Act, which were satisfied in this case. The court also noted that interest of three per cent should be payable on the damages awards.

Orders