Hunters Green Retirement Living Pty Ltd v J.G. King Project Management Pty Ltd (No 2)
[2023] VSC 593
•6 October 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
TECHNOLOGY, ENGINEERING AND CONSTRUCTION LIST
S ECI 2022 04325
| HUNTERS GREEN RETIREMENT LIVING PTY LTD (ACN 107 006 520) | Plaintiff |
| v | |
| J.G. KING PROJECT MANAGEMENT PTY LTD (ACN 095 695 079) | First Defendant |
| SUSAN LEECH | Second Defendant |
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JUDGE: | Attiwill J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 3 October 2023 |
DATE OF RULING: | 6 October 2023 |
CASE MAY BE CITED AS: | Hunters Green Retirement Living Pty Ltd v J.G. King Project Management Pty Ltd (No 2) |
MEDIUM NEUTRAL CITATION: | [2023] VSC 593 |
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COSTS – Plaintiff’s originating motion and summons on originating motion for judicial review of determinations made by the second defendant under s 23 of the Building and Construction Industry Security of Payment Act 2002 (Vic) – Supreme Court Act 1986 (Vic) s 24 – Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 63.04 – Applicable principles on costs – Multiplicity of issues – Apportionment of costs – Exercise of discretion – Pragmatic approach – Impression and evaluation – Proportion of costs awarded – Indemnity certificate granted under the Appeal Costs Act 1998 (Vic).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B G Mason | MinterEllison |
| For the First Defendant | Mr A R Morrison | Champions Lawyers |
| For the Second Defendant | No appearance |
HIS HONOUR:
Introduction
On 8 September 2023, the Court delivered reasons on the plaintiff’s (Hunters Green’s) origination motion filed 26 October 2022 and summons on originating motion filed 22 December 2022 (Primary Reasons). The background is set out in the Primary Reasons, and I will assume familiarity with them. Definitions and terms used in these reasons are the same as those used in the Primary Reasons. The issues now before the Court are what costs order the Court should make and whether the Court should grant the first defendant (JG King) an indemnity certificate in respect of costs pursuant to s 4(1) of the Appeal Costs Act 1998 (Vic) (Appeal Costs Act).
Hunters Green submitted that JG King should pay its costs of the proceeding, with such costs to be taxed on a standard basis in default of agreement. JG King submitted that it should only pay 25% of Hunters Green’s costs. JG King also sought the grant of an indemnity certificate in respect of costs pursuant to s 4(1) of the Appeal Costs Act. This was not opposed by Hunters Green. The second defendant (the Adjudicator) did not appear and made no submissions on costs.
Hunters Green’s submissions
Hunters Green relied upon a submission filed 15 September 2023 and made submissions at the hearing. Hunters Green made the following key submissions:
(a) the Court has a broad discretion as to costs, which is to be exercised in a judicial manner, and is usually informed by the guiding principle that costs follow the event;
(b) Hunters Green was the successful party and should be awarded its costs. Costs should follow the event;
(c) Hunters Green did not institute the adjudications. It was, in effect, in the overall circumstances, a respondent to JG King’s claims and Hunters Green’s position and behaviour in this proceeding should be judged in that light. Hunters Green was an unwilling participant in the adjudications. Greater latitude should, therefore, be given to Hunters Green in relation to the issues that it raised in this proceeding. In this context it relied upon the following observations of Allsop J (as his Honour then was) in Evans Deakin Pty Ltd v Sebel Furniture Ltd:[1]
[1][2003] FCA 282.
[7]I think it is also relevant to take into account the fact that I am here dealing with a respondent brought to court rather than an applicant. It seems to me that this is a consideration to be taken into account not by way of an arbitrary rule altering the discretion, but to assist in recognising that the position and behaviour of the person brought to court unwillingly may need to be judged in that light …
(d) Hunters Green accepted that it was a willing participant in this proceeding. It accepted that it was not in the same position as the respondent in Evans Deakin Pty Ltd v Sebel Furniture Ltd;[2]
[2][2003] FCA 282.
(e) the availability of an indemnity certificate pursuant to s 4 of the Appeal Costs Act is another reason why Hunters Green should not be kept out of pocket for its costs. It submitted that the effect on JG King of allowing all of Hunters Greens costs will be ameliorated by an indemnity certificate;
(f) there is no merit to JG King’s submission that Hunters Green should be limited to recovering 25% of its costs. Caution must be exercised when making an issues based costs order so that a party is not discouraged from canvassing all appropriate arguments before the Court. It is not appropriate for it to be deprived of some of its costs just because it did not succeed on some issues. It is necessary for JG King to establish something additional that makes it appropriate for the Court to exercise its discretion in this manner in all of the circumstances. Hunters Green made the following further submissions concerning the nominated percentage of 25%:
(i) the percentage does not properly reflect how the grounds of judicial review were framed in this proceeding, or the conduct of this proceeding;
(ii) it disregards that Grounds 1 and 2 were related, and essentially concerned the same issues. Ground 2 occupied negligible time at trial, and was barely addressed at all in JG King’s written submissions. Ground 3 was corollary to Grounds 1 and 2;
(iii) the nominated percentage incorrectly assumes that JG King’s success on the grounds it succeeded on was complete, when in fact JG King made submissions which the Court rejected. Hunters Green referred to, for example, paragraphs [90] and [126] of the Primary Reasons;
(iv) the evidence of Mr Miller, being the only deponent of an affidavit in the proceeding, was relevant to all grounds of review;
(v) the parties spent time addressing key aspects of the Contracts and the Building and Construction Industry Security of Payment Act 2002 (Vic) (the Act) that were relevant to all grounds of review;
(vi) it also disregards that Hunters Green’s position was heavily informed by this Court’s earlier decisions in Punton’s Shoes v Citi-Con[3] and Watpac Construction v CGM,[4] but which the Court in this case concluded were incorrect. Hunters Green referred to the Primary Reasons at [134]. Hunters Green submitted that the Court did not distinguish those earlier cases, or find that they were irrelevant to the issues in dispute before it. Instead, the Court disagreed with Digby J’s reasons. Consequently, in essence, JG King’s position on costs would have the effect of penalising Hunters Green for following the law as articulated in this State when its originating process was filed;
[3][2020] VSC 514.
[4][2020] VSC 637.
(vii) the issues upon which Hunters Green did not succeed were not as a result of baseless or improper submissions. They were complex issues and were “hotly contested”;
(viii) if the Court exercised its discretion to reduce Hunters Green’s costs this would have the effect of dissuading litigants, including Hunters Green, from canvassing all material issues;
(ix)JG King had already prepared draft submissions in another matter concerning judicial review of a decision of an adjudicator based upon error of law on the face of the record and so JG King did not have to incur significant costs in preparing the joint submission on the Court’s power of review in this proceeding (the joint submission).
JG King’s submissions
JG King relied upon a submission filed 15 September 2023 and made submissions at the hearing. JG King made the following key submissions:
(a) the usual order is that costs follow the event;
(b) this is an appropriate case, however, for the exercise of the Court’s discretion to make a proportionate reduction to the amount of the costs award. The event is not limited to the final result but may involve separate issues within the proceeding. This is reflected in r 63.04 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (the Rules). Detailed statements of principle as to the relevant considerations in the exercise of the Court’s discretion appear in GT Corporation Pty Ltd v Amare Safety Pty Ltd (No 3),[5] Chen v Chan (No 2),[6] and Nom De Plume Nominees Pty Ltd v Fingal Developments Pty Ltd (No 2);[7]
[5][2008] VSC 296 at [59].
[6][2009] VSCA 233 at [10].
[7][2016] VSCA 233 at [13].
(c) ultimately, the Court must strike a balance between not discouraging litigants from canvassing all material issues and not rewarding them for unreasonable conduct in pursuing issues. The exercise of the discretion is more “art than science”. It submitted that “[m]athematical precision is illusory”. JG King referred to, inter alia, Mickelberg v Western Australia,[8] and J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (No 2);[9]
[8][2007] WASC 140 (S) at [46].
[9][1993] FCA 70 at 4.
(d) JG King submitted that Hunters Green’s grounds of review were grouped into three topics, in effect, as follows:
(x) Grounds 1, 2, 5 and 6: whether claims (ie, the Payment Claims) for retention moneys engaged the Act’s processes;
(xi)Grounds 3 and 7: whether the Payment Claims identified the construction work or related goods and services to which they related for the purposes of the Act; and
(xii) Grounds 4 and 8: whether the Adjudicator incorrectly calculated the progress payment entitlements of JG King under the Act;
(e) Hunters Green was ultimately unsuccessful on the first two topics. Hunters Green succeeded on the third topic, but the Court only accepted its alternative submission which was based upon clause 37.4 of the Contracts. Its main submission in respect of Grounds 4 and 8 depended on the Court accepting that the Adjudicator was bound to take into account the contractual set-off imposed by clause 37.2 of the Contracts. The Court did not accept that submission. JG King referred to the Primary Reasons at [202];
(f) Grounds 1, 2, 5 and 6 received the most attention in written submissions and at the hearing. Grounds 3 and 7 received “relatively little attention”. Grounds 4 and 8 received less attention that Grounds 1, 2, 5 and 6 and more attention than Grounds 3 and 7. Hunters Green’s primary submission on Grounds 4 and 8 was not successful. Hunters Green only succeeded on “a small part of the total proceeding”;
(g) Hunters Green was, therefore, unsuccessful on two out of three topics, and not entirely successful on the third topic. The topics on which it was unsuccessful took up a substantial part of the written submissions and the hearing time. It would not be fair to require JG King to pay all of Hunter Green’s costs in these circumstances;
(h) Hunters Green succeeded on Grounds 4 and 8 based upon a concession made by JG King in the joint submission. There was a need for this Court to consider the issues raised in the joint submission concerning jurisdiction. Hunters Green should not have its costs of the joint submission;
(i) JG King assisted with the preparation of the joint submission (ie, concerning judicial review of a decision of an adjudicator based upon error of law on the face of the record) and it would be most unfair if JG King were required to pay both its own costs and Hunters Green’s costs in relation this. JG King submitted that this is a factor in favour of there being a discount in the costs payable by it to Hunters Green;
(j) JG King submitted that a costs order in Hunters Green’s favour, but for only 25% of its costs (on a standard basis), would appropriately balance the relevant factors.
Adjudicator’s submissions
The Adjudicator informed the Court she did not wish to be heard on the question of costs and therefore did not file submissions nor appear at the hearing. In correspondence to the Court filed on 18 September 2023, the Adjudicator drew the Court’s attention to the New South Wales Court of Appeal decision of Ceerose Pty Ltd v A-Civil Aust Pty Ltd,[10] concerning payments made to an adjudicator on an adjudication. Upon questioning by the Court, no party submitted that the Adjudicator was not entitled to be paid for the adjudications.
[10][2023] NSWCA 215 esp paragraphs [120]-[138].
Analysis
Pursuant to s 24 of the Supreme Court Act 1986 (Vic), the costs of and incidental to the proceeding are in the discretion of the Court, and the Court has full power to determine by whom and to what extent the costs are to be paid. The discretion must be exercised judicially. Rule 63.04 of the Rules provides:
63.04 Costs of question or part of proceeding
(1) The Court may make an order for costs in relation to a particular question in or a particular part of a proceeding.
(2) Where the Court makes an order under paragraph (1), the Court shall by order fix the proportion of the total costs of the proceeding which is attributable to the particular question in or the particular part of the proceeding.
In GT Corporation Pty Ltd v Amare Safety Pty Ltd (No 3),[11] Robson J said:
[11][2008] VSC 296.
[59]Based on these authorities, the general principles relevant to GT’s application in relation to costs are as follows.
1. The award of costs is in the discretion of the Court or Judge: s 24 Supreme Court Act 1986.
2. The discretion must be exercised judicially: Donald Campbell & Co v Pollak; Cretazzo v Lombardi.
3. The discretion cannot be exercised arbitrarily or capriciously and it cannot be exercised on grounds unconnected with the litigation: Cretazzo v Lombardi; or the circumstances leading up to the litigation: Oshlack v Richmond City Council.
4. Costs are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings. The order is not made to punish the unsuccessful party: Latoudis v Casey.
5. As a general rule, costs should follow the event, and a successful party should obtain all of the costs of the action even though it failed to establish some of the alternative heads of its claim: Ritter v Godfrey; McFadzean v CFMBEU.
6. Rule 63.04(1) permits the court, in its discretion, to make an order not only as to a distinct question or issue in the pleading sense, but also to any part of the proceeding: Woolf v Burmon; Cretazzo v Lombardi.
7. The court may, in its discretion, decline to order costs in favour of a successful party, or may order the successful party to pay the costs of the unsuccessful party, where the plaintiff failed to establish discrete heads of claim or failed to establish issues which it pursued in its claim, although ultimately succeeding on the basis of another discrete head of claim: McFadzean v CFMBEU.
8. It is not necessary that the issue concerned was raised unreasonably by the party: Rosniak v GIO. Although, a relevant consideration may include whether the issue was raised unreasonably: Mickelberg v Western Australia.
9. The court may, in its discretion, make an order that is a single order, fixing what proportion of a party’s costs should be paid by another party, thus obviating cross-orders or particular orders as to particular costs: Byrns v Davie; McFadzean v CFMBEU; Nolan v Nolan.
10. The caveat referred to by Jacobs J in Cretazzo v Lombardi may have less weight today than when it was decided: Primcom Pty Ltd v Sqarioto; Mickelberg v Western Australia; and Victoria v Master Builders Association of Victoria.
11. Although the quantum of damages recovered compared to that claimed may be a relevant consideration to the court in exercising its discretion, greater emphasis should be given to the failure or loss on discrete claims or issue and the time occupied in relation to them.
(citations omitted).
In Chen v Chan(No 2),[12] the Court of Appeal said:
[12][2009] VSCA 233.
[10]The contentions of the parties raise a number of questions relevant to costs orders on appeal. The principles relevant to these questions can be summarised as follows:
(1) The general rule is that costs should follow the event. Absent disqualifying conduct, the successful party should recover its costs even where it has not succeeded on all heads of claim.
(2) The Rules of Court permit significant flexibility in determining questions of costs. In particular, the Court is entitled to examine the realities of the case and will attempt to do ‘substantial justice’ as between the parties on matters of costs.
(3) Where there is a multiplicity of issues and mixed success has been enjoyed by the parties, a Court may take a pragmatic approach in framing the order for costs, taking into consideration the success (or lack of success) of the parties on an issues basis. Generally, if such an order is made, it is reflected in the successful party being awarded a proportion of its costs but not the full amount.
(4) A Court may, when fixing costs in a claim where there has been mixed success, take into account complications which it considers will arise in the taxation of costs, as part of its consideration of the overall interests of justice.
(5)Where a Court determines to make an order apportioning costs, then it does so primarily as ‘a matter of impression and evaluation,’ rather than with arithmetical precision, having considered the importance of the matters upon which the parties have been successful or unsuccessful, the time occupied and the ambit of the submissions made, as well as any other relevant matter.
…
(citations omitted).
In Nom De Plume Nominees Pty Ltd v Fingal Developments Pty Ltd (No 2),[13] the Court of Appeal said:
[13]The relevant principles for the resolution of the question as to the costs of the appeal, and in respect of any apportionment of the costs of the trial, are those set out by this Court in Chen v Chan. In short, for present purposes, while the general rule is that costs should follow the event, where there is a multiplicity of issues and mixed success has been enjoyed by the parties, the court may take a pragmatic approach in relation to costs, taking into consideration the success (or lack of success) of the parties on an issues basis. Such an approach will be primarily a matter of impression and evaluation.
(citations omitted).
[13][2016] VSCA 233.
Hunters Green succeeded in obtaining the relief it sought. The Adjudicator’s Determinations will be quashed. The usual order is that costs follow the event. There was, however, mixed success enjoyed by the parties upon the grounds of review (ie, Grounds 1 to 8). It is a significant factor that Hunters Green succeeded in obtaining the relief it sought. Hunters Green’s grounds of review may be grouped into three main topics:
(a) Grounds 1, 2, 5 and 6: whether the Payment Claims engaged the Act’s processes;
(b) Grounds 3 and 7: whether the Payment Claims identified the construction work or related goods and services to which they related for the purposes of the Act; and
(c) Grounds 4 and 8: whether the Adjudicator incorrectly calculated the progress payment entitlements of JG King under the Act.
Each of these topics involved discrete and substantial issues.
Hunters Green succeeded on Grounds 4 and 8. Grounds 4 and 8 were very substantive and discrete grounds of review. The issues occupied a substantial amount of time in preparation and at the hearing. This is evident in the written submissions, the transcript of the hearing and the Primary Reasons. The parties enjoyed mixed success on the issues concerning Grounds 4 and 8. The Court did not accept Hunters Green’s primary submission that the Adjudicator should have calculated the progress payments under the Act based upon clause 37.2 of the Contracts. The Court did accept Hunters Green’s alternate submission that the Adjudicator should have calculated the progress payments under the Act based upon clause 37.4 of the Contracts. This latter issue was not addressed in any detail in the parties’ written submissions prior to the hearing of the proceeding. The submissions based upon clause 37.4 of the Contracts took up less time in preparation and at the hearing than Hunters Green’s primary submission based upon clause 37.2 of the Contracts.
Hunters Green did not succeed on Grounds 1 and 5. These were also very substantive and discrete grounds of review. The issues occupied a substantial amount of time in preparation and at the hearing. This is evident in the written submissions, the transcript of the hearing and the Primary Reasons. The parties enjoyed mixed success on the issues concerning Grounds 1 and 5. The Court did not accept Hunters Green’s submission that the Payment Claims were claims solely to recover retention moneys. The Court, however, also did not accept JG King’s submission that the Payment Claims are best viewed as balancing claims being claims for the whole contract sum less amounts paid to date. The Court also did not accept JG King’s submission that Digby J’s observations in Punton’s Shoes v Citi-Con[14] are limited to matters concerning a ‘reference date’. The Court did accept that the Payment Claims related to construction work within the meaning of the Act. Grounds 2 and 6 related to Grounds 1 and 5 respectively. The issues concerning Grounds 2 and 6 did not separately occupy much time in preparation or at the hearing.
[14][2020] VSC 514.
Hunters Green did not succeed on Grounds 3 and 7. These were substantive and discrete grounds of review. The issues occupied a substantial amount of time in preparation and at the hearing. This is evident in the written submissions, the transcript of the hearing and the Primary Reasons. They did not, however, occupy as much time as Grounds 1 and 5 (together with Grounds 2 and 6) or Grounds 4 and 8. Ground 3 was not corollary to Grounds 1 and 2 and Ground 7 was not corollary to Grounds 5 and 6. Grounds 3 and 7 were separate and distinct grounds of review concerning the identification of the construction work.
I reject Hunters Green’s submission that, in effect, not allowing part of its costs would have the effect of penalising Hunters Green for following the law when it filed its originating process. This is because, in my view, not allowing part of its costs reflects it lack of success on discrete and substantive issues. It does not penalise it. I accept Hunters Green’s submission that, in the circumstances of the present case, only allowing 25% of its costs may dissuade future litigants, including Hunters Green, from, in effect, pursuing reasonable and appropriate issues in future cases. This is because such a percentage does not, in my view, adequately take into account that Hunters Green succeeded in obtaining the relief it sought and its success on Grounds 4 and 8. I reject, however, that any reduction in its costs would have this negative effect. It is a question of balance.
I have taken into account that, in relation to those issues upon which Hunters Green did not succeed, those issues also involved matters common to other issues, including the evidence of Mr Miller, the overall framework, operation and purpose of the Act and the operation of parts of the Contracts.
I have also taken into account that Hunters Green was a respondent to the adjudication and instituted the present proceeding as it was unsuccessful before the Adjudicator. I do not consider this to be a significant factor, in the present circumstances, in the exercise of my discretion as to costs. This is because Hunters Green was the applicant for judicial review in this proceeding. It made a forensic decision to commence the proceeding.
I reject Hunters Green’s submission that the availability of an indemnity certificate which could be granted to JG King is another reason why it should not be kept out of pocket for the costs it incurred. This is because the availability of an indemnity certificate is not relevant, in the present circumstances, to whether Hunters Green is entitled to its costs, and if it is, in what percentage or amount. I am not satisfied that the availability of an indemnity to JG King from public money is relevant.
I do not accept that a significant reduction should be made to the costs awarded to Hunters Green insofar as it concerns Hunters Green’s costs of the joint submission. There is no evidence before the Court concerning the costs incurred in relation to this. I am not satisfied that the costs incurred in relation to the joint submission are significant in the context of all of the issues in dispute in the proceeding. I have, however, taken into account that JG King did not oppose Grounds 4 and 8 on the issue of jurisdiction and that it assisted Hunters Green and the Court on this issue.
In my view, having regard to all of the circumstances I have addressed, this is a case in which an apportionment of costs is necessary to do justice between the parties. This is primarily a matter of impression and evaluation rather than arithmetical precision. The Court is in the position to make such an apportionment. Hunters Green failed on some discrete and substantive issues in the proceeding. These took up substantial time in preparation and at the hearing. Taking a pragmatic approach in framing the order for costs and Hunters Green’s success in obtaining the relief it sought in the proceeding and its success and lack of success on an issues basis, and the other circumstances I have addressed, I have determined that it is entitled to 70% of its costs, taxed on a standard basis in default of agreement. I am satisfied that this accords substantial justice between the parties. As a result, I will exercise my discretion to order that JG King pay 70% of Hunters Green’s costs of the proceeding with such costs to be taxed on a standard basis in default of agreement.
Indemnity certificate under the Appeal Costs Act
JG King sought the grant of an indemnity certificate pursuant to s 4 of the Appeal Costs Act. JG King made the following key submissions:
(a) in Radman v Open Plan,[15] Digby J considered whether it was open to grant an indemnity certificate under the Appeal Costs Act to a defendant/claimant if orders were made quashing a decision of an adjudicator under the Act. His Honour found that:
[15][2020] VSC 318.
(xiii) the application for judicial review was an “appeal, or a proceeding in the nature of an appeal”, under s 3 of the Appeal Costs Act;
(xiv) the adjudicator to whom the authorised nominating authority referred the plaintiff’s adjudication application, was a “court” within the meaning of s 3 of the Appeal Costs Act; and
(xv) the jurisdiction to order an indemnity certificate was thereby enlivened;
(b) the reasoning of Digby J in Radman v Open Plan[16] ought to be followed;
[16][2020] VSC 318.
(c) orders for appeal costs certificates were also made in, among other cases, Punton’s Shoes v Citi-Con;[17]
(d) the policy that underlies the Appeal Costs Act is to provide a remedy for an unsuccessful respondent to an appeal who, through no fault of its own, may otherwise be liable to meet a costs order. It was reasonable for JG King to rely on the Adjudicator’s Determinations. The ground on which it was ultimately unsuccessful was a complex one. It cannot be said that JG King’s argument was improper or baseless;
(e) there are no relevant discretionary factors against the granting of a certificate under s 4(1) of the Appeal Costs Act.
[17][2020] VSC 514.
Hunters Green did not oppose JG King being granted an indemnity certificate. It submitted that it was open to the Court to grant an indemnity certificate in this case.
Section 4(1)(a) of the Appeal Costs Act relevantly provides that if an appeal against a decision of a court in a civil proceeding to the Trial Division of this Court succeeds, a respondent to the appeal may apply to this Court for, and the Court may grant, an indemnity certificate in respect of costs. Hunters Green sought judicial review under order 56 of the Rules concerning an adjudication under the Act. It has been accepted that, for the purpose of the Appeal Costs Act, such proceedings are an “appeal” and an adjudicator under the Act comes within the meaning of a “court”. I refer to Digby J’s reasons in Radman v Open Plan.[18] I accept JG King’s submissions in support of the grant of an indemnity certificate. Upon questioning, no party drew the Court’s attention to any relevant discretionary factors against the grant of an indemnity certificate. As a result, I have concluded that, in the circumstances, it is appropriate to grant JG King an indemnity certificate under s 4(1) of the Appeal Costs Act.
[18][2020] VSC 318 at [39] and [68].
Conclusion and orders
As a result, I will:
(a) order JG King to pay 70% of Hunters Green’s costs of the proceeding with such costs to be taxed on a standard basis in default of agreement;
(b) grant JG King an indemnity certificate in respect of costs pursuant to s 4(1) of the Appeal Costs Act.
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