Dugan v Process Holdings Pty Ltd (No 2) - [2021] VSC 641

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT
COMMERCIAL LIST

S ECI 2019 04063

CRAIG FRANCIS DUGAN and others	Plaintiffs
v
PROCESS HOLDINGS PTY LTD (ACN 138 041 488) and others	Defendants

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JUDGE:	LYONS J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	13 October 2021
CASE MAY BE CITED AS:	Dugan v Process Holdings Pty Ltd (No 2)
MEDIUM NEUTRAL CITATION:	[2021] VSC 641

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PRACTICE AND PROCEDURE – Costs – Supreme Court Act 1986 (Vic) s 24(1) – Civil Procedure Act 2010 (Vic) s 65C – Nature of discretion as to costs – Interlocutory applications heard on one day – Parties represented by the same counsel and solicitors – Inter-relationship between the applications and overlap in the factual material relied upon – Plaintiffs successful on one application and mixed success on the other two applications – Pragmatic approach adopted as to the costs of the applications – Costs of all interlocutory applications apportioned based upon the Court’s impression and evaluation of success – Plaintiffs entitled to 75% of their costs of the applications – Mandie v Memart Nominees Pty Ltd [2020] VSCA 320 and Major Engineering Pty Ltd v Helios Electroheat Pty Ltd (No 2) [2006] VSCA 114 applied.

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APPEARANCES:

Counsel

Solicitors

For the Plaintiffs

Mr S. Marks QC with

Mr B. Gibson

Thomson Geer

For the Second to Thirteenth and Fifteenth Defendants

Mr M. Clarke QC with

Ms V. Plain

Cornwalls

HIS HONOUR:

INTRODUCTION

On 9 September 2021, I delivered reasons for judgment on three applications in this proceeding (the ‘applications’).[1] For convenience, I will use the terms defined in the Reasons.
[1]Dugan v Process Holdings Pty Ltd [2021] VSC 555 (‘Reasons’).

In summary, I determined to:

(1) dismiss the restraint application made by the defendants to restrain the plaintiffs’ solicitors from acting;

(2) allow in part the strike out application made by the plaintiffs seeking to strike out a number of paragraphs of the amended defences; and

(3) allow in part the amendment application made by the defendants seeking to address some of the complaints of the plaintiffs in the strike out application.

At the time judgment was delivered, by email from my chambers dated 9 September 2021, I indicated to the parties my preliminary view that, in light of the degree of success on the applications, it was appropriate that the defendants pay 75% of the plaintiffs’ costs of the applications (‘my preliminary view’). I noted that this outcome was consistent with the approach adopted by the Victorian Court of Appeal in Mandie v Memart Nominees Pty Ltd (‘Mandie’).[2]I conveyed my preliminary view in an attempt to avoid the costs and time of costs arguments.
[2][2020] VSCA 320 (‘Mandie’).

The plaintiffs indicated they did not oppose costs orders in accordance with my preliminary view. The defendants indicated they opposed such orders and suggested that the issue be determined on the papers by written submissions. The defendants filed…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2021] VSC 641
Decision Date: 13 October 2021

CaseChat Overview and Summary

The case of Dugan v Process Holdings Pty Ltd (No 2) involved an application for costs following a series of interlocutory hearings in the Supreme Court of Victoria. The plaintiffs, Mr Dugan and Mrs Dugan, sought to recover costs from the defendants, Process Holdings Pty Ltd, in relation to three separate applications. These applications were heard on the same day and involved overlapping factual material. The plaintiffs were successful on one application but achieved mixed results on the other two. The defendants, represented by the same counsel and solicitors as the plaintiffs, contested the plaintiffs’ entitlement to costs.

The central legal issue was the nature of the Court's discretion to award costs under sections 24(1) of the Supreme Court Act 1986 (Vic) and 65C of the Civil Procedure Act 2010 (Vic). The Court had to determine whether a pragmatic approach was appropriate given the inter-relationship between the applications and the overlap in the factual material. The Court was also required to assess the degree of success achieved by the plaintiffs in relation to each application.

The Court adopted a pragmatic approach in assessing the costs, acknowledging the overlap in the factual material and the inter-relationship between the applications. It evaluated the degree of success achieved by the plaintiffs on each application and apportioned the costs accordingly. The Court found that the plaintiffs were entitled to 75% of their costs of the applications. This decision was informed by the precedents set in Mandie v Memart Nominees Pty Ltd and Major Engineering Pty Ltd v Helios Electroheat Pty Ltd. The Court's decision recognised the mixed success of the plaintiffs and the inter-relationship of the applications, resulting in a proportionate allocation of costs.

The final orders of the Court awarded the plaintiffs 75% of their costs of the interlocutory applications, reflecting the pragmatic approach taken in assessing the degree of success achieved by the plaintiffs on each application.

Orders