Kalenik v Apostolidis (No 3)

In the matter of Kalenik v Apostolidis (No 3), the plaintiff sought an adjustment order for costs following a proceeding that saw both parties engage in misconduct. The case was heard in the Supreme Court of Victoria. The dispute centred on whether the plaintiff's costs, incurred during the trial, should be reduced due to the misconduct of both parties and the plaintiff's lack of success on significant factual issues. The plaintiff's evidence on these significant issues was rejected, leading to a contested application for the adjustment of costs.

The court was tasked with determining the appropriate reduction in the plaintiff's costs, considering the misconduct by both parties and the plaintiff's failure on key factual issues. Additionally, the court examined whether the plaintiff's rejection of a Calderbank offer made by the defendant was unreasonable, given the subsequent reduction in the plaintiff's costs entitlement. Finally, the court considered whether the without prejudice privilege, as protected by the Supreme Court (General Civil Procedure) Rules 2005, Rule 26.05(2), remained intact after all questions of liability and relief had been determined.

The court found that the misconduct by both parties warranted a reduction in the plaintiff's costs. However, the plaintiff's rejection of the Calderbank offer was not unreasonable, considering the overall circumstances. The court also held that the without prejudice privilege was not abrogated by the rules of court once all questions of liability and relief had been determined. Consequently, the plaintiff's costs of and incidental to the trial were reduced by 25 per cent, reflecting the misconduct and the plaintiff's partial lack of success on significant factual issues.