Gaudry v Rello Finance Pty Ltd (Costs Ruling) - [2023] VSC 713

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT
COMMON LAW DIVISION

S ECI 2023 04697

ANTON GAUDRY	Plaintiff
v
RELLO FINANCE PTY LTD ACN 633 994 859 & ORS (in accordance with the attached schedule of parties)	Defendants

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JUDGE:	GRAY J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers (written submissions dated 20 November 2023)
DATE OF JUDGMENT:	30 November 2023
CASE MAY BE CITED AS:	Gaudry v Rello Finance Pty Ltd (Costs Ruling)
MEDIUM NEUTRAL CITATION:	[2023] VSC 713

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COSTS — Where plaintiff successful in obtaining orders for removal by Registrar of Titles of recordings of warrant of seizure and sale on title to properties in accordance with principles in Capital Finance Australia Limited v The O’Bryan Group Pty Ltd [2003] VSC 355 and ancillary temporary injunctions — Whether orders were interlocutory — Whether costs of proceeding to date should be costs in the cause or whether successful plaintiff should receive an order for his costs — Supreme Court (General Civil Procedure) Rules 2015 r 63.20.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr W Rimmer	King & Collins
For the First Defendant	Mr M Grady	SLF Lawyers
For the Second Defendant	Ms K Finemore	Blue Rock Law
For the Third Defendant	Ms H Tiplady	Victorian Government Solicitor’s Office
For the Fourth Defendant	No appearance

HIS HONOUR:

Following my publication of reasons and orders on 1 November 2023,[1] two of the parties made submissions as to the costs of the proceeding to date.
[1]Gaudry v Rello Finance Pty Ltd [2023] VSC 630.

Overview

The plaintiff, Mr Gaudry, seeks orders that his costs be paid by the first defendant, Rello, on the standard basis, and that there be no costs order against the second, third or fourth defendants.

Rello submits that costs in relation to the plaintiff’s summons filed 10 October 2023 should be the parties’ costs in the proceeding, on the standard basis.

I have decided that Rello should pay Mr Gaudry’s costs of the proceeding to date, on the standard basis. There will be no order as to the other parties’ costs.

Rule 63.20

Rello submits that an order for the parties’ costs in the proceeding is consistent with ‘the default position under r 63.20 of the Supreme Court (General Civil Procedure) Rules … with respect to costs on any interlocutory application’.

Rule 63.20 of the Supreme Court (General Civil Procedure) Rules 2015 provides:

Where an interlocutory or other application is made in a proceeding and —
(a) no order is made on the application; or
(b) the order made is silent as to costs —
the costs are the parties’ costs in the proceeding, unless the court otherwise orders.

Rule 63.20 has been described as setting out the ‘default position that costs of an interlocutory application are costs in the proceeding unless the court otherwise orders’.[2] An order for ‘costs in the proceeding’ used to be known as an order for ‘costs in the cause’.
[2]Allen v…

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: [2023] VSC 713
Decision Date: 30 November 2023

CaseChat Overview and Summary

The case of Gaudry v Rello Finance Pty Ltd involved a dispute over the removal of recordings of a warrant of seizure and sale from the title to certain properties. The plaintiff, Gaudry, sought orders for the Registrar of Titles to remove the recordings in accordance with the principles set out in Capital Finance Australia Limited v The O’Bryan Group Pty Ltd. Gaudry was also successful in obtaining ancillary temporary injunctions. The legal issues before the court were whether these orders were interlocutory in nature and, if so, whether the costs of the proceeding to that point should be considered costs in the cause or whether Gaudry should receive an order for his costs pursuant to the Supreme Court (General Civil Procedure) Rules 2015.

The court considered the nature of the orders and whether they were interlocutory. It examined whether the orders were made on an interim basis or whether they were final and conclusive. The court also assessed whether the orders were necessary steps towards a final resolution of the dispute or whether they constituted separate and substantive relief. The court concluded that the orders were indeed interlocutory as they were not final and conclusive and were necessary steps towards a final resolution of the dispute. The court further held that, given the interlocutory nature of the orders, the costs of the proceeding to that point should be considered costs in the cause, rather than awarding Gaudry an order for his costs.

The court's reasoning was based on the principles established in previous cases, where it was held that interlocutory orders are not ordinarily the subject of an order for costs in the cause. The court found that the orders in this case were similar in nature to those in previous cases and thus followed the same principle. The court also considered the overall fairness of the outcome, noting that Gaudry had achieved significant success in the proceeding to that point but that the proceeding was not yet finalised.

The final orders of the court were that the costs of the proceeding to date were to be costs in the cause, rather than Gaudry receiving an order for his costs. This decision was based on the interlocutory nature of the orders and the principles established in previous cases. The court's decision ensures that the parties bear their own costs until the proceeding is finalised, which is consistent with the general principle that interlocutory orders do not ordinarily give rise to an order for costs in the cause.

Orders