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Edelman v Badower

Edelman v Badower

Case [2010] VSC 427 24 September 2010

Costs

Amendment to Statement of Claim

Pleading of Facts

Civil Litigation & Procedure

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 4334 of 2006

DAVID EDELMAN	Plaintiff
v
JUSTIN WOOLF BADOWER and Others	Defendant

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JUDGE:	MUKHTAR AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	21 June 2010
DATE OF JUDGMENT:	24 September 2010
CASE MAY BE CITED AS:	Edelman v Badower
MEDIUM NEUTRAL CITATION:	[2010] VSC 427

COSTS – Taxation of costs – Amendment to statement of claim by leave – Pleading of facts not in existence when writ was filed – Order to pay defendants’ costs thrown away – Proceedings rendered indefensible – Whether defendants’ costs before amendment recoverable under costs order – Meaning of costs “thrown away” – Meaning of costs “of and occasioned by” – Rule 63.17

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms M. Gourlay	Cyngler Kaye Levy
For the First and Second Defendants	Mr P. Bornstein	C. Tang and Associates

HIS HONOUR:

The question in this case concerns the meaning and ramifications of a court order requiring an party to pay costs “thrown away”, having been given leave to amend a pleading. Such an ancillary order is routinely made in courts without the occasion to consider the precise coverage of that expression, or leaving it as a concern for the eventual assessment of costs. A point of principle, or analysis, has arisen in this case about the meaning of costs thrown away in some unusual circumstances involving terms of settlement.

There were initially four defendants but the disputants for present purposes are the plaintiff and the first two defendants, Justin and Tai Badower. The case involved joint ownership of land, disputes over possession and use of the land, and a claim for partition or judicial sale. The plaintiff amended his statement of claim by leave, but he was ordered to pay the Badowers’ costs thrown away. An amended defence was delivered and the case progressed. They eventually settled with the plaintiff, but on terms preserving the order for costs thrown away by reason of the amendment. The Badowers have lodged a bill of costs of $64 999 as their costs thrown away and have filed a summons for taxation of those costs. They acknowledge, as they must, that the plaintiff’s amendments were textually not major, but contend the amendments fundamentally so altered the nature of the litigation that they really could not defend the claim for judicial sale. They say that nearly all their legal work done before the amendment was wasted and was therefore “thrown away”.

The plaintiff objects to every item on the ground that the bill is misconceived as not being drawn in accordance with the costs entitlement. He contends the bill is an abuse of process and seeks an order that the bill be redrawn. I was told that if the plaintiff is correct, the bill may be no more than about $3 000.

There is more to this case than saying that costs thrown away mean costs wasted. It requires an exposition of the nature of…

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 Edelman v Badower

Details

AGLC: Edelman v Badower [2010] VSC 427
Case: [2010] VSC 427
Decision Date: 24 September 2010

CaseChat Overview and Summary

In the case of Edelman v Badower, the dispute between the parties centred on the taxation of costs within the context of legal proceedings. The case was heard in the Supreme Court of New South Wales. The plaintiff, Edelman, sought to amend their statement of claim with leave, introducing facts that were not in existence at the time the writ was initially filed. The defendants, Badower, objected to the amendment and argued that it rendered the proceedings indefensible. They sought an order for the plaintiff to pay their costs, which were subsequently deemed to be "thrown away." The primary legal issue before the court was whether the defendants' costs incurred prior to the amendment of the statement of claim could be recovered under the relevant costs order. This involved interpreting the phrases "costs thrown away" and "costs of and occasioned by" within the context of Rule 63.17.

The court examined the nature of the amendment and its impact on the proceedings, determining whether the amendment was such that it rendered the defendants' pre-amendment costs irrecoverable. The court considered the circumstances under which costs may be considered "thrown away" and whether they could be said to be "of and occasioned by" the proceedings. It found that the amendment did not, in itself, render the defendants' costs irrecoverable if those costs were directly related to the proceedings before the amendment. The court held that the defendants' pre-amendment costs were recoverable as they were of and occasioned by the proceedings, despite the amendment that followed.

Consequently, the court ruled in favour of the defendants, allowing them to recover their costs incurred prior to the amendment. The court's decision clarified the scope of costs that may be recovered in such circumstances, providing guidance on the interpretation of relevant legal principles. This ruling ensures that parties can better understand their rights and obligations concerning costs in similar future cases.

Orders