Kenyon v Akeroyd (No 2) - [2009] VSCA 168

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 3798 of 2006

ELIZABETH MARY PANDELLA KENYON
	Appellant
v
JASON ROBERT AKEROYD (NO 2)	Respondent

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JUDGES:	MAXWELL P, REDLICH JA and FORREST AJA
WHERE HELD:	MELBOURNE
DATE OF COSTS HEARING:	13 March 2009
DATE OF JUDGMENT:	26 June 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 168
JUDGMENT APPEALED FROM:	Akeroyd v Kenyon (Unreported, County Court of Victoria, Judge Wilmoth, 2 October 2006)

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COSTS – Costs of the Appeal – Court’s discretion – Part success and part failure – Singular statutory claim – Each side bear its own costs.

COSTS – Costs of the trial – Relevance of Calderbank offer – Each side bear its own costs.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms K McMillan SC with Ms B A Tulloch	Jane M Curtis & Associates
For the Respondent	Mr R J Spicer	Wards

MAXWELL P,
REDLICH JA,
FORREST AJA:

On 19 December 2008, the Court delivered judgment, allowing in part the appeal by Ms Kenyon, and varying aspects of the order of the trial judge in favour of the respondent, Mr Akeroyd. On that occasion, only two Justices were present. As counsel for Mr Akeroyd was not in a position to make submissions concerning the form of orders or as to costs, the Court ordered that written submissions be filed. A further hearing was held on 13 March 2009.

Costs of the appeal

The provisions of s 24 of the Supreme Court Act1986 (Vic) and r 64.24 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) make it clear that the determination of the question of costs is in the Court’s discretion. The discretion is absolute and unfettered, but must be exercised judicially.

Ms Kenyon’s contention is that, by reason of her successful attack on the trial judge’s evaluation of her claim, she is entitled to all of the costs of the appeal. She relies on the general rule that a successful party should receive his or her costs.[1]
[1]Ritter v Godfrey (1920) 2 KB 47, 52.

In the usual case, the costs of an appeal will follow the event. Where there is part success and part failure, however, the position is not so straightforward. As this Court said in Major Engineering Pty Ltd v Helios Electroheat Pty Ltd (No 2): [2]

where there is a mixed outcome in the proceeding, such as here, the apportionment of the comparative importance of the relevant claims in the proceeding – here, the claim and the counterclaim – can only be carried out on a broad basis, it being primarily a matter of impression and evaluation, rather than arithmetic precision.

[2][2006] VSCA 114, [5] (citations omitted).

Adopting that ‘broad’ approach, we consider that the costs of this appeal should lie where they fall. Our reasons are as follows.

First, a claim under Part IX of the Property Law Act1958 (Vic) is a singular statutory claim. It is quite different from a claim for damages…

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 Kenyon v Akeroyd (No 2)

Details

AGLC: Kenyon v Akeroyd (No 2) [2009] VSCA 168
Case: [2009] VSCA 168
Decision Date: 26 June 2009

CaseChat Overview and Summary

The case of Kenyon v Akeroyd (No 2) involves the parties Kenyon, the appellant, and Akeroyd, the respondent. The dispute pertains to the costs associated with the appeal and the trial, specifically focusing on the discretion of the court in awarding costs under the relevant statutory framework. The matter was heard in the Supreme Court of Victoria. The central legal issue before the court was the allocation of costs in light of a part success and part failure outcome in the appeal, as well as the relevance of a Calderbank offer made during the trial proceedings. The court was required to decide whether the singular statutory claim should lead to a different approach in cost allocation and whether the Calderbank offer should influence the final cost orders.

The court considered the statutory provision that allows for costs to be awarded in cases of part success and part failure. It was noted that the case involved a single statutory claim, which was partially successful. The court examined the principle that typically each party bears their own costs in such situations. Additionally, the court analysed the relevance of a Calderbank offer, which is a conditional offer to settle made without admission of liability, to determine the appropriate cost orders. The court found that the Calderbank offer did not significantly alter the outcome of the trial and did not warrant a different cost allocation. Given the part success and part failure outcome, and considering the statutory framework, the court concluded that it was appropriate for each party to bear their own costs.

In conclusion, the court ruled that the costs of the appeal should be borne by the respective parties, reflecting the part success and part failure nature of the appeal. Similarly, the court determined that the costs of the trial should also be borne by each party, without significant consideration of the Calderbank offer. This approach aligns with the statutory provisions and the principles governing cost allocation in cases where there is no clear prevailing party. The final orders of the court reflect this reasoning, ensuring that neither party is unduly burdened with the costs of the other.

Orders