Hicks v Quattro Capital Group Pty Ltd (No 2)

[2022] VCC 1594

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

COMMERCIAL DIVISION

 Revised
Not Restricted
Suitable for Publication

General List

Case No. CI-21-03337

JORDAN HICKS	Plaintiff
v
QUATTRO CAPITAL GROUP PTY LTD	Defendant

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JUDGE:	HIS HONOUR JUDGE MACNAMARA
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	28 September 2022
CASE MAY BE CITED AS:	Hicks v Quattro Capital Group Pty Ltd (No 2)
MEDIUM NEUTRAL CITATION:	[2022] VCC 1594

REASONS FOR JUDGMENT
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Subject:COSTS

Catchwords:              Costs application to enforce adjudication by Australian Financial Complaints Authority unsuccessful – costs order on standard basis in favour of defendant – defendant’s success not to be regarded as a result of a “late amendment” – plaintiff’s success on some points did not materially enlarge costs incurred so as to modify operation of rule that costs follow the event

Legislation Cited: R 63A.31 County Court Civil Procedure Rules 2018  

Cases Cited:Hicks v Quattro Capital Group Pty Ltd [2022] VCC 1255; Beoco Ltd v Alfa Laval Co Ltd [1995] QB 137, 154; Yazgi v Permanent Custodians Ltd (No 2) (2007) 13 BPR 24; [2007] NSWCA 306; Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304; Paragreen v Lim Group Holdings Pty Ltd (No 2) [2020] VSCA 97; Stanley v Philips (1966) 115 CLR 470

Judgment:The plaintiff must pay the defendant’s costs of the proceeding to be assessed on a standard basis in default of agreement.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P Bingham	Maurice Blackburn
For the Defendant	Mr A Aleksov with Mr P Donovan	Roberts Gray Lawyers

HIS HONOUR:

Background

1On 11 August 2022 I delivered reserved reasons dismissing Mr Hicks’ application to enforce an adjudication made by the Australian Financial Complaints Authority [2022] VCC 1255. I reserved the question of costs. The parties have now filed their written contentions on that subject.

Defendant’s submissions on costs

2Counsel for the defendant sought an order that the plaintiff, Mr Hicks, should pay the defendant’s costs of the proceeding on the standard basis with a certificate for the attendance of two counsel at trial.  They said this costs order should extend to costs reserved at interlocutory stages and also to the costs the subject of interlocutory orders described as being “costs in the cause”.  They relied on the general rule that costs follow the event.  The costs should be on the standard basis they said.  They referred to Rule 63A.31.

3A certificate for two counsel they said was appropriate, “because the case raised complex issues of law which required the attention of two counsel.”

4Finally, they conceded that the costs order in favour of the plaintiff relative to an application on 17 November 2021 should stand.

Plaintiff’s contentions

5Counsel for the plaintiff contended that his client, “was not on notice of the case that succeeded at trial”.  He said that insofar as there was a contention of an implied term in the AFCA Rules which governed the adjudication sought to be enforced, such implied term was not pleaded in the plaintiff’s defence.  He said, “In effect, the case that the Plaintiff had to meet was subject to late amendment”.  In such circumstances the case which his client had to meet was substantially altered and therefore he should be entitled to costs of the action down to the date of the “amendment”.  He contended that a change of front by the defence was the functional equivalent of a pleading amendment.  He referred to Beoco Ltd v Alfa Laval Co Ltd [1995] QV 137, 154. In the present case Mr Bingham said that, “It is appropriate to order that the Defendant be deprived of costs because the matters upon which that party was unsuccessful took up a significant part of the trial”. He referred to Yazgi v Permanent Custodians Ltd (No 2) (2007) 13 BPR 24; [2007] NSWCA 306 at [24] and Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 at [38]. Alternatively, he said that where multiple issues were agitated and the successful party enjoyed only mixed success a court may in an appropriate case adopt a pragmatic approach awarding the successful party a proportion of its case but not the full amount. He referred to the decision of the Court of Appeal in Paragreen v Lim Group Holdings Pty Ltd (No 2) [2020] VSCA 97 at [5].

6Mr Bingham also contended it was inappropriate to certify for two counsel.  He noted that the trial was short, the defendant called no evidence, the sums in dispute were modest with brief written submissions.  He concluded, “The Defendant has not shown that the services of more than one counsel were reasonably required for the adequate presentation of the case”.  Stanley v Philips (1966) 115 CLR 470, 478-9.

Conclusions

7The general principle that “costs follow the event”, so that the successful party at trial should normally expect a costs award in his, her or its favour, was not in dispute.  The successful defendant relied upon it.  The plaintiff contended that the circumstances described by his counsel engaged one or more exceptions to that rule.

8The defendant’s success in this proceeding cannot be attributed to a “late amendment” in the sense in which that expression was used in Beoco Ltd v Alfa Laval Co Ltd [1995] QB 137, 154 per Stuart-Smith LJ. That case was a complex damages claim raising complex factual issues. As the plaintiff’s own costs submissions observed, the present case was the subject of a brief trial without any disputes as to the primary facts. There was no late pleading amendment. The issues dealt with in the principal judgment were covered by counsel’s argument without any suggestion that either party had been “taken by surprise”. The principle relative to the effect of late amendments on costs was not engaged here.

9Further, it is not evident that the proceeding was protracted by the examination of matters of fact or legal argument on which the defendant ultimately failed.

10In these circumstances the principle that costs follow the event leads to an order being made in the defendant’s favour for its costs on a standard basis.  That order affects the interlocutory costs orders in the manner contended for by the defendant.

11In the circumstances, I think it inappropriate to certify for two counsel.  I accept the contentions in that respect advanced by Mr Bingham on behalf of the plaintiff.