Holt v Bunney (No 2)
[2020] SASCFC 120
•10 December 2020
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
HOLT v BUNNEY (No 2)
[2020] SASCFC 120
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Nicholson and The Honourable Justice Hughes)
10 December 2020
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT - COSTS
The appellant successfully appealed against an order at trial that he repay the respondent the sum of $145,583.94 being $104,999 that the respondent had transferred into the appellant’s bank account, together with an amount of pre-judgment interest. On appeal, it was held that the $104,999 (but for $1 still outstanding) was payment of the consideration under an enforceable contract for sale of an Aston Martin Virage motor vehicle which consideration the appellant was entitled to retain.
The appellant now seeks orders that (1) the respondent pay the appellant’s costs of the proceedings on a party and party basis (under the recently promulgated Uniform Civil Rules now to be referred to as the standard costs basis); and (2) that the respondent pay the appellants costs of the appeal on the same basis. The respondent pressed a number of contentions as to why the justice of the case called for various alternative costs orders more favourable to the respondent.
Held by the Court:
1. The respondent is to pay the appellant’s costs of the trial on the standard costs basis.
2. The respondent is to pay the appellant’s costs of the appeal on the standard costs basis.
Uniform Civil Rules 2020 (SA) r 194.5, r 195.6; Supreme Court Act 1935 (SA) s 40, referred to.
Copping v ANZ McCaughan (1995) 63 SASR 523; Gwinnett v Day (No 2) [2012] SASC 61; House v The King (1936) 55 CLR 499; Oshlack v Richmond River Council (1998) 193 CLR 72, considered.
HOLT v BUNNEY (No 2)
[2020] SASCFC 120Full Court: Kourakis CJ, Nicholson and Hughes JJ
THE COURT.
Introduction
Following a trial in the District Court, the respondent, as plaintiff, was successful in obtaining orders that the appellant repay to the respondent the sum of $104,999 and pre-judgment interest in the amount of $40,584.94.[1] The respondent also obtained associated costs orders in his favour.[2] Following a successful appeal to this Court, the trial Judge’s orders were set aside.[3] The parties were invited to provide written submissions with respect to the costs of the trial and of the appeal.
[1] Bunney v Holt [2019] SADC 145.
[2] Bunney v Holt (No 2) [2019] SADC 160.
[3] Holt v Bunney [2020] SASCFC 89.
The facts and the reasoning by both the trial Judge and this Court on appeal are more fully set out in the principal judgment on appeal.[4] The following summary will suffice by way of further background.[5]
[4] Holt v Bunney [2020] SASCFC 89 (Nicholson J with whose reasons Kourakis CJ and Hughes J agreed).
[5] Holt v Bunney [2020] SASCFC 89 at [4]-[10].
On 12 April 2013, Paul Roy Bunney (plaintiff at trial and respondent to the appeal) transferred $100,000 into the bank account of David Terrence Holt (defendant at trial and appellant) sometimes referred to by the respondent as Terry or David. On 14 April 2013, he arranged the transfer of an additional $4,999 into that same account. Following a lengthy trial in the District Court, the respondent succeeded with his claim for the repayment of that money. The Judge ordered, inter alia,
Judgment for the plaintiff in the sum of $104,999 plus pre-judgment interest in the sum of $40,584.94 giving a total of $145,583.94 to [sic] the period ending 2 October 2019.
The issues canvassed at the trial included: whether the money had been advanced as a loan; whether the respondent and the appellant had entered into a binding contract for the respondent to purchase from the appellant a 1992 Aston Martin Virage motor vehicle (the Virage) for the price of $105,000; whether the money had been paid under mistake; and whether the respondent lacked capacity to enter into a contract.
The Judge found, and notwithstanding that the respondent suffered from bi-polar disorder type 1 that was florid during his dealings with the appellant, that the respondent did have capacity to contract during the relevant period. However, his Honour found that neither a loan transaction nor a contract to purchase had been entered into. Rather, the $100,000 had been paid under mistake and, there being no relevant defence, had to be repaid and the $4,999, having been paid in contemplation of what turned out to be an ineffective transaction, was also repayable.
In his second notice of appeal, the appellant has raised seven grounds with subgrounds asserting numerous errors of reasoning by the Judge. However, the appellant’s essential contention is that the Judge erred in not finding that the parties had entered into a binding contract for the sale and purchase of the Virage for the sum of $105,000, with the sum of $104,999 having been paid prior to completion, which is still to occur. None of the other conclusions by the Judge has been challenged on the appeal either by way of the notice of appeal or a notice of contention.
The appellant’s case on appeal is that the parties, as a result of their interactions during the period 4 April 2013 to 15 April 2013, upon application of the objective theory of contract formation, did enter into such a contract. It was also agreed or, at least, an understanding that the appellant would retain possession of the Virage until delivery was called for and the final one dollar of the purchase price paid. As the matter presently stands, the appellant still has possession of the Virage and stands ready, willing and able to facilitate delivery when called upon and upon payment of the outstanding one dollar. Alternatively, the appellant might elect to waive payment of the outstanding one dollar but has not done so yet. On the appellant’s case, the respondent, by refusing to pay the one dollar and call for delivery, has repudiated the binding contract. That repudiation remains unaccepted by the appellant.
The appellant concedes that if the Judge’s finding of no contract ultimately were to be upheld, there being no other challenge to his Honour’s conclusions, the appellant would be obliged to repay the $104,999 together with interest. The appellant has also appealed against the Judge’s orders for costs. The grounds are such that they still would need to be considered if the substantive appeal were to be dismissed.
For the reasons that follow, I would allow the appeal, set aside the Judge’s order that the appellant pay the respondent the sum of $145,583.94 inclusive of interest and set aside the Judge’s costs orders. I would hear the parties on the costs of the trial and of the appeal.
(Citations omitted)
The appellant now seeks the usual order, that is, that the respondent should pay the appellant his costs of the appeal and of the trial below on a party and party basis.[6] The respondent contends that close attention should be directed to various attempts to resolve the dispute made by the respondent, the circumstances which gave rise to the litigation and in which it was fought, and the appellant’s persistent refusals to compromise.
[6] Now, in accordance with the recently promulgated Uniform Civil Rules 2020, to be referred to as the standard costs basis.
The respondent contends that the justice of the case calls for the respondent to have his costs on a party and party basis for the period after 3 October 2018[7] which we infer is to include the costs not only of the trial itself but also of the appeal, and that there be no order as to costs for the period between 17 January 2017[8] and 3 October 2018.[9] In the alternative, the respondent contends that there should be, simply, no order as to costs; again, we infer that this would be with respect to both the trial and the appeal. In the further alternative, the respondent submits that any costs award in favour of the appellant should be “capped in the sum of $104,999 with costs to the value of this sum being fully discharged by the appellant’s retention of the Virage”.
[7] The trial was conducted on a number of days between 2 October 2018 and 5 March 2019 with judgment being delivered on 2 October 2019.
[8] Being a date on which the respondent offered, unsuccessfully, to resolve the proceedings.
[9] Being the date the respondent made another offer.
The last alternative, a somewhat singular form of costs order, is untenable. One consequence of the findings on appeal is that the respondent, by refusing to complete the binding contract and take delivery of the Virage, has repudiated the contract. As at the time of trial, this repudiation had remained unaccepted by the appellant. An order in terms of the third alternative above, would in effect compel the appellant to accept the repudiation and terminate the contract and to repurchase the Virage for the original sale price. The appellant’s purpose in entering the contract was to rid himself of the Virage. Whether or not the parties, following further negotiations, might arrive at some arrangement pursuant to which the appellant does retain possession of the Virage or assists the respondent in some way to realise its value is a matter for the parties. But this should not be forced upon the appellant under the guise of a costs order with respect to finalised litigation.
General costs principles
Of present relevance, and unless otherwise ordered by the Court, the Uniform Civil Rules 2020 apply to a proceeding commenced or a step in a proceeding taken on or after the commencement date of the Rules[10] (18 May 2020). Both the trial and the appeal were instituted before 18 May 2020. However, the definitions in rule 2.1 of the Uniform Civil Rules 2020 of “proceeding” (paragraph (d)) and “step in a proceeding or appellate proceeding”, when read together with the chapeau to the definition of “appeal” and the definition of “appellate proceeding” in rule 211.1 of the Uniform Civil Rules 2020, give rise to an ambiguity as to whether the appeal in this matter is an aspect of the trial proceeding or a separate proceeding.
[10] Uniform Civil Rules 2020 (SA) rule 1.4(1).
It is not necessary to resolve this issue. The definition in rule 2.1 of “step in a proceeding or appellate proceeding” includes “action taken” and an “order made in a proceeding”. The Judge’s costs orders were set aside in the principal judgment on appeal.[11] The applications made before this Court for the costs of the trial and of the appeal and the costs orders to be made as a consequence of these reasons will be steps, in either the original trial proceeding or the appellate proceeding, taken after 18 May 2020, and the Uniform Civil Rules 2020 apply.
[11] Holt v Bunney [2020] SASCFC 89 at [215].
Rule 194.5 of the Uniform Civil Rules 2020 provides for a series of general principles relevant to the awarding of costs. Material to this matter are subrules 194.5(1) and (2).
(1)Each of the following principles are subject to—
(a) the presumptive costs rules in rule 194.4 (to the extent that the Court does not otherwise order);
(b) other applicable rules;
(c) other applicable principles; and
(d) the overriding discretion of the Court as to costs.
(2)Costs follow the event.
Rule 194.6 provides for a number of discretionary factors that may need to be taken into account.
194.6—Discretionary factors
(1) In exercising its discretion as to costs, the Court may have regard to any factors it considers relevant.
(2) For example, the Court may have regard to the following factors—
(a) any misconduct or unreasonable conduct of a party in connection with a proceeding;
(b) any breach by a party of overarching obligations, these Rules or an order of the Court;
(c) any breach by a party of the pre-action obligations imposed by Chapter 7 Part 1;
(d) the making or not making of an offer by a party to resolve the proceeding;
(e) the non-acceptance by a party of an offer made by another party to resolve the proceeding;
(f) the value and importance of the relief sought or any relief obtained;
(g) any public interest in the subject matter of the proceeding or public benefit from the prosecution or defence of the proceeding; or
(h) whether costs awarded are to be met by a person or out of a fund.
Note—
See also rule 61.16 in relation to pre-action steps and rule 132.11 and rule 132.12 in relation to formal offers.
I do not understand the fundamental position following the introduction of the Uniform Civil Rules to be any different from that existing under previous rules of court; when the Rules are read in conjunction with subsection 40(1) of the Supreme Court Act 1935 (SA),[12] there has been conferred on courts and judges an unfettered discretion as to costs.[13] Of course, the discretion must be exercised judicially by not relying on irrelevant considerations and by having regard to all relevant considerations,[14] including those discretionary considerations identified in subrule 194.6(2).
[12] Subsection 40(1) provides:
(1) Subject to the express provisions of this Act, and to the rules of court, and to the express provisions of any other Act whenever passed, the costs of and incidental to all proceedings in the court, including the administration of estates and trusts, shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and to what extent such costs are to be paid.
[13] See generally Copping v ANZ McCaughan [1995] SASC 4917; (1995) 63 SASR 523 at 527, Gwinnett v Day (No 2) [2012] SASC 61.
[14] House v The King [1936] HCA 40; (1936) 55 CLR 499.
In the present case, the respondent failed at trial on all but one issue. The Judge found in the respondent’s favour that there had been no contract to buy the Virage such that, in the circumstances as found by the Judge, the money the respondent had paid to the appellant had to be repaid. On appeal those findings were reversed. The respondent lost comprehensively on appeal and should have lost comprehensively at trial. In these circumstances, and in the absence of any countervailing discretionary factors, the costs of the trial and the appeal should follow the event and the usual orders, as sought by the appellant should be made.
The respondent’s submissions
The respondent in his submission drew attention to the discretionary considerations in paragraphs (d), (e), (f), (g) and (h) of subrule 194.6(2). The respondent, primarily, relies on the fact that he made a number of early attempts to negotiate a resolution of the dispute and a number of offers to resolve the dispute during the proceedings, the circumstances in which those attempts and offers were made (including the state of the respondent’s health) and the asserted failure of the appellant to respond to the same appropriately.
The respondent made a number of informal written offers prior to the commencement of the proceedings in the District Court; an initial offer dated 27 May 2014 was repeated on 11 January, 2 February and 27 April 2015. The appellant proved to be uninterested in pursuing negotiations. It has not been submitted that any of these overtures or offers if brought to fruition would have resulted in a position no less favourable to the appellant than the judgment ultimately obtained. With these attempts to resolve the dispute in mind, the respondent made these submissions.
Knowing a person was suffering from a serious mental health condition (requiring hospitalisation) at the relevant time money was transferred and knowing the Virage could not be restored or registered without Mr Holt’s direct involvement, it is difficult to envisage circumstances in which it was reasonable for Mr Holt to reject all offers of compromise and force the matter to trial. This is more so, given that no counter-offers were made, which might have addressed matters such as a time frame in which restoration, registration and resale, might have been effected.
Additionally, on Mr Holt’s own evidence, his input and oversight in relation to the required restoration of the car was always necessary if the vehicle was ever to be capable of use by Mr Bunney. The judgement recognises that the respondent wished to have the Virage registered and to be able to drive it on public roads. Absent having regard to Mr Bunney’s mental health condition, it is implausible that there was ever any intent by either party for the sale and purchase of what would otherwise be considered an expensive lump of metal that could never be registered or driven by Mr Bunney.
As established on his own evidence, only Mr Holt could achieve registration of the vehicle, which would have to be in his name, as the vehicle had been imported by him as a personal import.
Thus at the time each offer of settlement was made, Mr Holt knew that Mr Bunney was not in his right mind when the money was transferred. Mr Holt also knew that his assistance with restoration would be required if the vehicle was to be capable of being driven by Mr Bunney. He also knew that an arrangement would have to be put in place for Mr Holt to register the vehicle in his name, before it could ever be capable of use or driven on the road by Mr Bunney.
(Footnotes omitted)
The interactions between the parties which gave rise to the finding (on appeal) that they had entered into a contract for the respondent to purchase the Virage took place between 4 April 2013 and 15 April 2013. Whilst the contract was in place no later than 15 April 2013, the Court’s preferred view, as expressed in the principal judgment, was that the contract to purchase was formed on Wednesday 10 April 2013 at or about 11.54 pm when the appellant emailed his bank account details to the respondent.[15]
[15] Holt v Bunney [2020] SASCFC 89 at [57], [164], [166], [168].
It is true that the respondent, in a number of respects, appeared to behave in an erratic manner during this period and this was apparent to the appellant. Indeed, his insistence on buying the Virage and immediately transferring $104,999 into the appellant’s bank account can be seen as somewhat outré, if not bizarre, behaviour. However, the Judge found that the respondent had contractual capacity during the period of his dealings with the appellant and this finding was not challenged on the appeal. This finding was made notwithstanding that, on 16 April 2013, the respondent was detained in a mental health ward at the Royal Adelaide Hospital where he remained for two weeks.
Thereafter, the parties interacted in a congenial fashion including spending time together in the United Kingdom between 12 and 28 July 2013. In August 2013 the respondent, having returned to Australia, was again hospitalised, this time for major depression. It was in September 2013, the respondent having left hospital and the appellant having returned from the United Kingdom, that the parties fell out over the arrangements for the Virage.[16] Plainly, the appellant was aware of the respondent’s capacity for bizarre behaviour from time to time and of the two hospital admissions. However, there is no evidence (or findings at trial) as to the respondent’s state of mental health as at the time his informal overtures to resolve the dispute were made (May 2014 and early 2015), as at the time any of his later offers to settle were made (see below) or as to any knowledge thereof in the appellant.
[16] Holt v Bunney [2020] SASCFC 89 at [131]-[133].
In addition, there were no findings at trial or on appeal to the effect that the appellant’s “input and oversight in relation to the required restoration of the car was always necessary” or that “the Virage could not be restored or registered without [the appellant’s] direct involvement if the vehicle was ever to be capable of use by [the respondent]”. There was some evidence and submissions made at trial bearing on these issues. However, there was no necessity to resolve them. The contract did not contain a term concerning registration and the contract was one for sale of the vehicle in an “as is” condition.[17]
[17] Holt v Bunney [2020] SASCFC 89 at [202]-[206].
Furthermore, the price of the vehicle was struck on the basis of the appellant’s representation to the respondent that, in a restored state and on the road, the vehicle “probably” would be worth approximately $125,000 and that it would cost $20,000 “to get everything done to get it on the road”. Plainly, the vehicle in its then state had a value and could be re-sold whether or not it was restored. The amounts represented by the appellant were never challenged or tested and no findings were made. It simply is not possible to conclude whether (in a monetary sense) the respondent made a provident or improvident bargain.
The factual basis relied on for the submissions extracted above is not made out. In any event, the submissions are directed at attacking or undermining the judgment on appeal and even if factually made out would have no impact on that judgment. The appellant was entitled to insist on his rights at law as he perceived them and as to which, ultimately, he was vindicated. The matters relied on above are not such as to justify a departure from the usual costs position. It cannot be said that the appellant acted unreasonably in insisting that the matter proceed to trial.
On 3 October 2018, soon after the commencement of the trial, the respondent made an offer to settle in these terms.
(i)The appellant was to restore the car over a period of three months and thereupon put it up for sale over a period of six months.
(ii)If a sale price between $90,000 and $104,999 were to be obtained, it would be given to the respondent; anything in excess of $104,999 would be retained by the appellant.
(iii)If a sale price of less than $90,000 were to be obtained, the appellant would be liable to pay the respondent the amount necessary to bring the price up to $90,000.
The respondent contended that this offer placed no risk on the appellant provided the price obtained was at least $90,000 which was substantially less than the value of $125,000 following restoration, as represented by the appellant. The respondent submitted as follows.
The effect of this offer was that it placed no risk on Mr Holt at all. He retained the $104,999. He was required to do little more than that which had always been required on any sale of the car, namely his oversight of restoration and his registration of the vehicle. In addition, it provided him with the opportunity to keep all sums in excess of $104,999, in circumstances where it was his evidence the car would be worth $120,000, restored and registered. It also constructively managed the restoration and registration conundrum, which remains following the Appeal Court’s decision.
Whilst Mr Bunney is in a much worse position following the Appeal Court’s decision, by reason of the restoration and registration conundrum, it is the case that Mr Holt is also arguably in a worse position than he would have been if he had accepted Mr Bunney’s offer, in that he no longer has an ability to retain any sale price above the $104,999. That being the case, Mr Holt has not done better as a result of the Appeal Court’s decision, than he would have done had he accepted Mr Bunney’s offer. That is a relevant consideration in assessing whether Mr Holt should be awarded his costs after this date.
The offer of 3 October 2018 was restated in identical terms by letter from the respondent’s solicitor dated 18 October 2018 which, again, was not accepted.
There are four aspects to the offer of 3 October 2018 that were not dealt with in the respondent’s costs submissions.[18] First, nothing was expressly stated concerning who would pay out of pocket expenses to complete the restoration work and for on-road costs.[19] Second, nothing was expressly stated concerning remuneration, if any, for the appellant’s time and labour. Third, it was a condition of the offer that if the Virage did not sell within the six month period, the appellant would repay the sum of $104,999 in any event. And fourth, it was a condition of the offer that each party would bear their own costs. Given that the offer as put required the appellant to restore the vehicle, place it on the market and effect a sale, the inference is that it was he who was to be liable with respect to the first two matters just now referred to.
[18] The offer is set out in a letter from the respondent’s solicitors dated 3 October 2018, Case Book Vol 1, page 148.
[19] The evidence at trial was that approximately $20,000 would be needed to complete the restoration work.
In these circumstances and contrary to the respondent’s submission, it cannot be said that the appellant necessarily would have been better off had he accepted the offer and he may well not have been. The four matters referred to above and the fact that the appellant ultimately succeeded in having his contractual entitlement wholly vindicated (and was only able to do so by proceeding to trial) strongly indicate that he did not act unreasonably in refusing the offer of 3 October 2018 or 18 October 2018.
It was not a term of the contract of sale that the appellant would take responsibility for or assist with any restoration work. Whilst the parties’ personal relationship remained on good terms there had been an expectation on the respondent’s part that the respondent would do the restoration work and the appellant would assist with supervision as necessary. However, the contract was unconditional in this respect.[20] Whatever, in the circumstances of the parties’ precontractual and post-contractual relationship, morality might have called for, the appellant was and is not, in law, the respondent’s keeper.
[20] Holt v Bunney [2020] SASCFC 89 at [204]-[208].
The respondent also relies on a pre-action offer made by letter dated 17 January 2017, in accordance with rule 33 of the District Court Civil Rules 2006 then in force. The offer was to the effect that the appellant would retain the Virage upon reimbursing the respondent $100,000; in effect, on the appellant’s case, a re-sale to the appellant at a discount. The respondent contends that this would have put the appellant in a better position than he enjoys under the judgment on appeal: he would have retained $4,999, had the use of the $104,999 for four years interest free, not been put to the costs of the litigation and also have ownership of the Virage which he could restore and re-sell.
This offer was relied on following the trial in support of the respondent’s application for a special costs order. The Judge found that in the circumstances at the time, it was reasonable for the appellant not to have accepted that pre-action offer.[21] The appellant submitted that this determination by the Judge was not challenged at the appeal. However, whether this is a partial or complete answer to the respondent’s reliance, at this stage of the proceedings and for a different costs purpose, on the appellant’s refusal to accept this offer, does not need to be resolved.
[21] Bunney v Holt (No 2) [2019] SADC 160 at [36].
A fundamental problem with the offer, as with all of the respondent’s attempts to resolve the dispute, is that it ignores an important aspect of the legal arrangement which the appellant sought to and was entitled to enforce. From the respondent’s perspective, the dispute was simply a money claim; he wanted his money back and was in a position to compromise on quantum. From the appellant’s perspective (ultimately vindicated) the essence of the transaction was that he had divested himself of a substantially (but not fully) restored classic car for a substantial price. The market for such a chattel is relatively small. It should not be assumed that he would readily be able to re-sell the vehicle for that price. Further, it cannot be assumed that he did not need the $104,999; the evidence at trial was to the effect he did. It was the expectation of both parties that the money was to be spent on renovating the appellant’s house in Summertown. It is not to be assumed, and there is no evidence, that the appellant would have been financially able to refund such a large sum at the time any of the offers were made without borrowing (assuming that he had that capacity) or selling an asset.
Further, it can be inferred from the appellant’s conduct that he did not want to re-acquire ownership of the very vehicle he believed (correctly) he had sold. The reasonableness or otherwise of non-acceptance of the respondent’s offers to settle, including the rule 33 pre-trial offer, can only be evaluated once the outcome of the litigation is known. The appellant had divested himself of the Virage for a fixed price. It was not unreasonable for the appellant to have refused the respondent’s attempts to compromise by way of a different bargain.
In summary, the respondent relies on his mental state and asserted knowledge thereof by the appellant together with the respondent’s various attempts to resolve the dispute, none of which except for that in the letter of 3 October 2018 recognised the appellant’s interest in having permanently divested himself of the ownership of the Virage. The 3 October 2018 offer, if accepted, would have exposed the appellant to the risk of an outcome less favourable than that he ultimately achieved and would have obliged the appellant to assume onerous responsibilities at his own expense.
The following submissions by the appellant should be accepted.
There is at least an undertone, if not a direct suggestion, which permeates [the respondent’s submissions], to the effect that the Appellant somehow took unfair or unconscionable advantage of the Respondent by rejecting offers of settlement. There is no basis for any finding to that effect:
[1] there was no challenge to the primary judge’s finding that the Respondent had capacity to contract;
[2]the Respondent never ran any case at trial to the effect that the terms of the bargain struck were in any way unfair, or that the Appellant engaged in any sort of unreasonable, unconscionable, exploitative or unreasonable conduct in seeking to hold the Respondent to his bargain. Any adverse finding against the Appellant on these issues would be unfair;
[3] evidence going to the Appellant’s knowledge or otherwise about the Respondent’s mental health was referred to in paragraph 47 of the Appellant’s written submissions on the appeal. In addition to that evidence, the Appellant respectfully refers to T535-537, where he repeatedly denied that he knew (after the Respondent had been admitted to hospital) that the Respondent had been suffering from “serious mental health issues”.
.. . .
Further, the Respondent’s suggestion that the Appellant could have profited from restoring and selling the vehicle for more than $104,999 is entirely speculative. The proceedings did not raise any issue as to the value of the vehicle in a restored condition in 2018. That question was therefore not the subject of any evidence, including expert evidence, which could have been tested in the normal way. The suggestion that the Appellant could have made a profit also fails to have any regard to the Appellant’s expenditure on legal costs.
(Footnote omitted)
In Oshlack v Richmond River Council,[22] McHugh J said this.
The traditional exceptions to the usual order as to costs focus on the conduct of the successful party which disentitles it to the beneficial exercise of the discretion. In Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd, Devlin J formulated the relevant principle as follows:
“No doubt, the ordinary rule is that, where a plaintiff has been successful, he ought not to be deprived of his costs, or, at any rate, made to pay the costs of the other side, unless he has been guilty of some sort of misconduct.”
“Misconduct” in this context means misconduct relating to the litigation, or the circumstances leading up to the litigation. Thus, the court may properly depart from the usual order as to costs when the successful party by its lax conduct effectively invites the litigation; unnecessarily protracts the proceedings; succeeds on a point not argued before a lower court; prosecutes the matter solely for the purpose of increasing the costs recoverable; or obtains relief which the unsuccessful party had already offered in settlement of the dispute.
(Citations omitted)
[22] [1998] HCA 11; (1998) 193 CLR 72 at [69].
The appellant has not engaged in any conduct of this nature. More generally, we are not persuaded that the circumstances of this litigation justify any departure from the usual rule. We make the following orders.
1.The respondent is to pay the appellant’s costs of the trial on the standard costs basis.
2.The respondent is to pay the appellant’s costs of the appeal on the standard costs basis.
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