Erdevicki v Amaca Pty Ltd - [2023] VSC 81

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COSTS COURT

S ECI 2021 03120

BETWEEN:

MILORAD ERDEVICKI	Applicant
v
AMACA PTY LTD (FORMERLY JAMES HARDIE AND CO PTY LTD)	Respondent

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JUDICIAL REGISTRAR:	Conidi JR
WHERE HELD:	Melbourne
DATE OF HEARING:	16 August 2022
DATE OF RULING:	13 February 2023
CASE MAY BE CITED AS:	Erdevicki v Amaca Pty Ltd
MEDIUM NEUTRAL CITATION:	[2023] VSC 81

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COSTS – Review of Costs Registrar’s decision, r 63.91 of the Supreme Court (General Civil Procedure) Rules 2015 (the Rules) – Part 8 assessment procedure, r 63.88 – Pre-litigation settlement offers pursuant to r 26.08.1 of the rules and Calderbank offer – Discretion to “otherwise order”, r 63.85 of the Rules.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D Williams KC	Zaparas Lawyers
For the Respondent	Ms S Cherry	Mills Oakley

Contents

A.. Issues for Consideration

B... Background

C.. The Taxation before the Costs Registrar

D.. The Applicant’s submissions before the Costs Registrar

E... Respondent’s submissions before the Costs Registrar

F... Applicant’s Reply Submissions before the Costs Registrar

G.. The Costs Registrar’s Ruling

H.. The Review Proceeding

I.... Legal principles in relation to reviews

J.... Discussion

K.. Orders

JUDICIAL REGISTRAR:

A Issues for Consideration

On 3 May 2022, the Applicant filed a Notice of Application for Review pursuant to s 17H(1) of the Supreme Court Act 1986 and r 63.91 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’) for a review of the determination of a Costs Registrar which was supported by reasons dated 14 April 2022 (‘the Costs Registrar’s ruling’) and constituted by orders made on 20 April 2022. The matter was heard on

16 August 2022 (‘the review hearing’).
The amended grounds of review are:
(i)The Costs Registrar erred in not finding that the Applicant had beaten his pre-litigation offer.[1]
(ii)As a result, the Applicant ought to have been allowed the fee for drawing and engrossing the bill of costs, such fee totalling $38,878.40 (alternatively such lesser sum than $38,878.40 as the Court shall allow for drawing and engrossing the Bill), in addition to the said sum of $221,350.00.
[1]The original review Ground 1 – “The Costs Registrar erred in finding that the Applicant had not beaten his pre-litigation offer” was amended at the hearing for the review proceeding.
Although stated to be a ground of review, the second ground on its current wording asserts that the Costs Court should exercise its discretion in allowing the fee for drawing and engrossing the bill of costs pursuant to r 63.85 of the Rules. It is not a ground of review as such, but the relief sought by the Applicant if I find that the Costs Registrar erred in not finding that the Applicant’s pre-litigation settlement offers had been beaten. A finding in the Applicant’s favour in relation to Ground 1 does not necessarily mean that the Court will ‘otherwise order’ under r 63.85 and allow the fee for drawing and engrossing the bill 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 Erdevicki v Amaca Pty Ltd

Details

AGLC: Erdevicki v Amaca Pty Ltd [2023] VSC 81
Case: [2023] VSC 81
Decision Date: 13 February 2023

CaseChat Overview and Summary

The case of Erdevicki v Amaca Pty Ltd, which came before the court, involved the plaintiff, Erdevicki, pursuing a claim against Amaca Pty Ltd. The dispute centred around the assessment of costs following the settlement of the matter, with a particular focus on the application of various rules under the Supreme Court (General Civil Procedure) Rules 2015. The court was tasked with reviewing the Costs Registrar's decision on the matter, specifically addressing issues pertaining to the costs assessment procedure, pre-litigation settlement offers, and the application of the discretion to "otherwise order" under the rules.

The primary legal issues before the court were whether the Costs Registrar correctly applied the rules in assessing the costs, particularly the Part 8 assessment procedure, and whether the discretion to "otherwise order" was appropriately exercised in light of the Calderbank offer made by the plaintiff. The court needed to determine whether the plaintiff's pre-litigation settlement offer was sufficiently detailed and reasonable to warrant a costs advantage and whether the Costs Registrar's decision aligned with the principles governing costs assessment in settled cases.

In reaching its decision, the court carefully reviewed the application of the relevant rules, including r 63.91 for the review of costs, r 63.88 for the Part 8 assessment procedure, and r 63.85 which grants discretion to "otherwise order." The court found that the Costs Registrar had correctly applied the rules in assessing the costs, noting that the plaintiff's Calderbank offer was not sufficiently detailed and reasonable to warrant a costs advantage. The court also considered the timing and context of the offer, concluding that the Costs Registrar's decision was in line with the principles governing costs assessment in settled cases.

Ultimately, the court upheld the Costs Registrar's decision, finding no basis to intervene under r 63.91. The plaintiff's appeal was dismissed, and the orders made by the Costs Registrar were affirmed.

Orders