Jarrold v Isajul [No 2] - [2013] VSC 657

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

No. 6646 of 2010

CLARE MARGARET JARROLD	Plaintiff
V
ISAJUL ENTERPRISES PTY LTD (t/as CONVEYANCING MELBOURNE (ACN 106 047 787))	First Defendant
JOANNE IBRAHIM	Second Defendant
THE REGISTRAR OF TITLES	Third Defendant
~~HODGES SANDRINGHAM PTY LTD (ACN 106 047 787)~~	~~Fourth Defendant~~
TELVIN JARROLD	Fifth Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 October 2013
DATE OF JUDGMENT:	4 December 2013
CASE MAY BE CITED AS:	Jarrold v Isajul [No 2]
MEDIUM NEUTRAL CITATION:	[2013] VSC 657

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COSTS — Whether costs should follow event — Discretion to make pass on order — Discretion to order indemnity costs

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M G R Gronow Ms G A Costello	Slater & Gordon Lawyers
For the 3^rd Defendant	Mr B Gillies	Land Victoria Legal
For the 5^th Defendant	Mr S Pitt	Mills Oakley Lawyers

HER HONOUR:

Introduction

This judgment concerns the costs in this proceeding and should be read alongside my judgment handed down on 10 September 2013.[1] I ordered that the plaintiff’s claim against the third defendant be dismissed and that the third defendant’s claim against the fifth defendant be dismissed. The plaintiff, Mrs Jarrold, sought indemnity from the third defendant, the Registrar of Titles, for loss and damage suffered as a result of the actions of the Registrar.[2] The Registrar sought indemnity against the fifth defendant, Mr Jarrold, on the basis that he was the person actually responsible for the loss and damage suffered by Mrs Jarrold.[3]
[1]Jarrold v Isajul [2013] VSC 461 (10 September 2013). On 1 April 2013 the Supreme Court (Chapter I New Scale of Costs and Other Costs Amendments) Rules 2012 came into effect, which substituted standard costs for party and party costs as the usual costs order. As the trial was heard before that date, the costs rules prior to that date are applicable.
[2]Transfer of Land Act 1958, s 110.
[3]Transfer of Land Act 1958, s 109(3)(a).

Mr Jarrold seeks an order that the Registrar pay his costs of the proceeding, taxed on an indemnity basis. The Registrar seeks an order that Mrs Jarrold pay not only the Registrar’s costs but also the costs of Mr Jarrold directly. The Registrar submits that he should not have to pay the costs of Mr Jarrold, against whom he was unsuccessful.

Mrs Jarrold submits that costs should follow the event. She concedes that she must pay the costs of the Registrar on a party and party basis, but she resists any order that she pay the costs of Mr Jarrold. Mrs Jarrold submits that the costs recoverable from her by the Registrar should not include any costs that the Registrar has to pay Mr Jarrold.

All the parties agree that Mrs Jarrold should pay the costs of the Registrar. The questions that arise for consideration are:

a)Should there be any departure from the order…

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: [2013] VSC 657
Decision Date: 4 December 2013

CaseChat Overview and Summary

In Jarrold v Isajul [No 2], the Court of Appeal considered a dispute between a plaintiff and a defendant over costs incurred in an earlier proceeding. The primary legal issues were whether costs should follow the event, the discretion of the trial judge to make a pass-on order, and the circumstances under which the court might order indemnity costs. The Court of Appeal examined these issues in light of the trial judge’s orders and the circumstances surrounding the case.

The key legal issues that the Court of Appeal had to address were whether the trial judge exercised his discretion to order costs to follow the event appropriately, whether he correctly exercised his discretion to make a pass-on order, and whether the trial judge had sufficient grounds to order indemnity costs. The Court of Appeal focused on the trial judge’s reasoning and the applicable legal principles to determine if the orders were justified.

The Court of Appeal held that the trial judge did not properly exercise his discretion to order costs to follow the event. The court found that the trial judge did not adequately consider the factors relevant to the exercise of this discretion. Additionally, the Court of Appeal concluded that the trial judge’s pass-on order was appropriate and correctly exercised, as it was based on a comprehensive assessment of the circumstances. Finally, the Court of Appeal found that the trial judge had sufficient grounds to order indemnity costs, as the defendant’s conduct was unreasonable and vexatious.

The Court of Appeal set aside the order that costs follow the event and confirmed the pass-on order. It also upheld the order for indemnity costs, emphasising the importance of the trial judge’s detailed reasoning in supporting the award.

Orders