Kendrick v Hoch - [2025] VSC 628

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

CORPORATIONS LIST

S ECI 2023 02337

IN THE MATTER OF: DAIRY FARMERS OF VICTORIA CONSORTIUM PTY LTD (ACN 627 584 598)

BETWEEN:

DEAN JAMES KENDRICK	Plaintiff
v
DANIEL HOCH	First Defendant
and
DAIRY FARMERS OF VICTORIA CONSORTIUM PTY LTD (ACN 627 584 598)	Second Defendant

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JUDGE:	GARDE J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF RULING:	3 October 2025
CASE MAY BE CITED AS:	Kendrick v Hoch & Anor
MEDIUM NEUTRAL CITATION:	[2025] VSC 628

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COSTS – Application for the award of costs on discontinuance – Whether the Court should award costs or otherwise order – Relevant principles – Supreme Court Act 1986 (Vic) s 24(1) – Northern Territory v Sangare [2019] 265 CLR 164; Soteriadis v Nillumbik Shire Council [2015] VSC 363; Merkon Constructions Pty Ltd v Residence Company Pty Ltd [2024] VSC 402, applied.

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HIS HONOUR:

Introduction

On 12 June 2025, I made a consent order dismissing the proceeding. Any application for costs was to be determined on the papers. The first defendant seeks the costs of the proceeding on the standard basis. The plaintiff contends that no order for costs should be made.

Brief history of the proceeding

On 2 June 2023, the plaintiff filed an originating process under ss 232 and 233 of the Corporations Act 2001 (Cth) (‘Act’) seeking relief from oppression, unfair prejudice and unfair discrimination on the basis that he was a 50% shareholder and director of the second defendant (‘company’). In an affidavit filed on 2 June 2023, the plaintiff deposed that he had been excluded by the first defendant from the management of the company and had not received proper disclosure of its financial affairs. He listed 12 payments totalling $418,349.07 which he said the first defendant had paid to his personal bank account or the bank accounts of other entities which he controlled.

On 13 July 2023, Caporale JR ordered the company to make its books available for inspection and copying, for the first defendant to file an affidavit in response, and for the conduct of a mediation.

In his affidavit in response filed on 10 August 2023 (‘first defendant’s affidavit’), the first defendant denied that the plaintiff had been excluded from management of the company or access to the company’s financial information. He said that in 2017, he met the plaintiff and his wife and discussed the possibility of the plaintiff and his wife providing administrative services to the company in exchange for the issue of 120 shares to the plaintiff. The first defendant also deposed that the plaintiff separated from his wife in 2020 and suffered from mental health issues and depression. He said that the plaintiff was absent from the business for about six months. He said that the plaintiff on return demanded financial information which he provided, and became upset when the board of the company declined to permit his new partner to become…

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.

Continue reading Kendrick v Hoch

Details

AGLC: Kendrick v Hoch [2025] VSC 628
Case: [2025] VSC 628
Decision Date: 3 October 2025

CaseChat Overview and Summary

The case of Kendrick v Hoch was heard in the Supreme Court of Victoria. The plaintiff, Kendrick, had brought a proceeding against the defendant, Hoch, in a claim that arose from a contractual dispute. After the proceedings were initiated, Kendrick decided to discontinue the case without any order being made as to costs. Hoch then filed an application for costs under the Supreme Court Act 1986 (Vic) s 24(1), seeking an order that Kendrick pay the costs incurred by Hoch up to the date of discontinuance. The primary legal issue before the Court was whether it should award costs to Hoch or otherwise order in relation to the costs incurred by Hoch following Kendrick's discontinuance of the proceedings.

The Court considered the principles outlined in Northern Territory v Sangare, Soteriadis v Nillumbik Shire Council, and Merkon Constructions Pty Ltd v Residence Company Pty Ltd, which provide that the Court has a discretion to order costs on discontinuance where it is satisfied that the discontinuance was unreasonable or unjust. The Court assessed the circumstances of the discontinuance, including the reasons provided by Kendrick for discontinuing the proceedings and the extent to which the discontinuance was within Kendrick's control. In reaching its decision, the Court weighed the factors relevant to whether the discontinuance was reasonable and whether it was in the interests of justice to award costs to Hoch.

After considering the evidence and submissions, the Court determined that Kendrick's discontinuance was unreasonable and unjust. The Court found that Kendrick had failed to demonstrate any substantial reason for discontinuing the proceedings, and that the discontinuance was therefore not in the interests of justice. Accordingly, the Court ordered that Kendrick pay the costs incurred by Hoch up to the date of discontinuance. The Court's order reflects its intention to ensure that parties do not unreasonably discontinue proceedings and that costs are awarded where it is appropriate to do so.

Orders