Golding v Primavera Holdings Pty Ltd (No 2)
[2024] ACTSC 149
•17 May 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Golding v Primavera Holdings Pty Ltd (No 2) |
Citation: | [2024] ACTSC 149 |
Hearing Date: | On the papers |
Decision Date: | 17 May 2024 |
Before: | Ainslie-Wallace AJ |
Decision: | (1) The defendant is to pay 90% of the plaintiffs’ costs of and incidental to the application, those costs to be agreed or assessed. (2) The defendant is to pay interest to the plaintiffs on the valuation sum of $550,000, calculated from 15 September 2022 to the date of these orders. (3) Order 3 made on 16 February 2024 is amended to delete reference to Clause 2.1(iii). |
Catchwords: | PRACTICE AND PROCEDURE – COSTS – Apportionment of costs – whether costs referable to separate issues – whether costs to be considered as a whole – where interest claimed – costs awarded in favour of plaintiff – interest awarded |
Parties: | Allan Jones Golding (First Plaintiff) Eveleen Golding (Second Plaintiff) Primavera Holdings Pty Ltd (ABN 79 080 185 244) (Defendant) |
Representation: | Counsel R Arthur ( First and Second Plaintiff) WDB Buckland ( Defendant) |
| Solicitors Taylor Legal ( First and Second Plaintiff) Minter Ellison ( Defendant) | |
File Number: | SC 31 of 2023 |
AINSLIE-WALLACE AJ
Introduction
On 16 February 2024 I determined a dispute between the parties as to whether a valuation of a property was conducted in accordance with the terms of engagement of the valuer. The defendant contended that the valuation did not conform to the terms of engagement and was not binding on the parties while the plaintiffs argued that it was.
Also determined was a claim by the defendant that the plaintiffs were liable to it for the costs of maintaining a bank guarantee and a further claim by the defendant for reimbursement for the costs incurred by the defendant as trustee in maintaining the trust property, the subject of the dispute.
But for the reimbursement of the costs of maintaining the trust property, the defendant was unsuccessful in the suit.
On delivering reasons, the parties were directed to provide brief written submissions on the question of the costs of those proceedings. In short, the plaintiffs contend that the defendant should pay all of their costs, notwithstanding its success on the reimbursement issue, while the defendant contends that the plaintiff should pay its costs in that regard.
The parties further seek amendment of the orders made in the matter.
Costs
Whether and to what extent costs are ordered is an exercise of direction, and there was no dispute between the parties that a costs order could apportion costs payable as between issues litigated in the matter. However, courts have urged caution before ordering the apportionment of costs referrable to separate issues.
It is to be observed that the proceedings were commenced by the plaintiffs as a consequence of the defendant failing to pay to them the value of the trust property in accordance with the terms of the trust deed dated 14 March 2003, entered into between the parties (the Trust Deed). It seems that it was in response to the plaintiffs’ application for enforcement of the defendant’s obligations under the Trust Deed that they sought a declaration that the valuation was not binding on the parties. It was in that response document that the defendant sought the costs of maintaining the bank guarantee and the trustee’s reimbursement.
The defendant argued that the claim for reimbursement of the costs of maintaining the trust property was a discrete issue capable of forming the basis of a separate claim against the plaintiffs. They argued that, as such, they should have a costs order against the plaintiffs in relation to that particular application.
It was further argued that to approach the apportionment of costs by reference to the value of the claim in which the plaintiffs were successful, or the time taken to argue the issue, would be a “crude arithmetical” approach which would unfairly ignore the time and costs expended by the defendant in preparing to argue the issue of the trustee’s reimbursement.
The principal proceedings were commenced by the plaintiffs in response to the defendant’s failure to meet its obligations under the Trust Deed once the valuation was provided to the parties, and the ensuing litigation was focused on the defendant’s contention that the valuation was not binding. The plaintiffs were successful on that point.
Of the two claims raised by the defendant in its response to the plaintiffs’ application, the plaintiffs were successful against the defendant’s claim for the costs of maintaining the bank guarantee given to them to secure the defendant’s performance of its obligations under the Trust Deed.
I observe that the issue on which the plaintiffs were not successful occupied a small compass, the submissions on the point were brief, as befitted the issue, which was simple, that is whether the defendant was entitled to claim the reimbursement. The defendant was successful and should have an order for costs.
However, the defendant’s costs have to be considered against the costs of the proceedings as a whole and it would not be just if a separate and distinct order for costs was made in relation to the issue. Taking into account the case as run, in my view, a costs order in the defendant’s favour should be reflected as a percentage of the whole of the costs awarded to the plaintiffs. I propose to order that the defendant pay 90% of the plaintiffs’ costs of the proceedings, as agreed or assessed.
Amendment of the Orders
It was agreed between the parties that Order 3 made on 16 February 2024 should be amended to remove a reference to Clause 2.1(iii) of the Trust Deed, because while it reflected the application for orders, it was not an order contemplated by the Trust Deed.
Interest
The plaintiffs claimed interest on the valuation sum and sought an order that the defendant pay interest on the valuation sum of $550,000 from 21 April 2021, the date on which the Trust Deed was entered into by the parties. The defendant argued that the Trust Deed itself provides for interest to run 14 days after the valuation of the trust property was provided, being 15 September 2022, but contended that in fact interest should run from the date on which the plaintiffs commenced their application to enforce the Trust Deed. I reject that submission, noting again that the application of the plaintiffs was driven by the defendant’s failure to meet its obligations. Interest on the valued sum should be allowed as provided in the Trust Deed, that is from 15 September 2022 until the date of judgment.
The defendant seeks an order that the plaintiffs pay interest on the reimbursement sum. The reimbursement amount claimed by the defendant is $27,591.54, on which the claimed interest is $2,486.81. The defendant’s submissions note that the plaintiffs have apparently agreed to pay a sum of $30,470 by way of reimbursement. It is not entirely clear how the disparity in what is claimed and what the plaintiffs have agreed to pay has come about but given that the amount agreed is more than the defendant sought in its application, I decline to award interest on the claimed sum.
Orders
For those reasons, the following orders are made:
(1)The defendant is to pay 90% of the plaintiffs’ costs of and incidental to the application, those costs to be agreed or assessed.
(2)The defendant is to pay interest to the plaintiffs on the valuation sum of $550,000, calculated from 15 September 2022 to the date of these orders.
(3)Order 3 made on 16 February 2024 is amended to delete reference to Clause 2.1(iii).
| I certify that the preceding seventeen [17] numbered paragraphs are a true copy of the Judgment of her Honour Acting Justice Ainslie-Wallace Date: |
0
0
0