Kingston v Head, Transport for Victoria; Jomaring Pty Ltd v Head, Transport for Victoria (No 2)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

VALUATION, COMPENSATION AND PLANNING LIST

S ECI 2020 04458

David Ronald Kingston	Plaintiff
v
Head, Transport for Victoria	Defendant

S ECI 2020 04463

Jomaring Pty Ltd	Plaintiff
v
Head, Transport for Victoria	Defendant

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JUDGE:	Quigley J
WHERE HELD:	Melbourne
DATE OF HEARING:	2 to 17 August 2023
DATE OF JUDGMENT:	10 May 2024
CASE MAY BE CITED AS:	Kingston v Head, Transport for Victoria; Jomaring Pty Ltd v Head, Transport for Victoria (No 2)
MEDIUM NEUTRAL CITATION:	[2024] VSC 231

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COSTS — LAND VALUATION — ACQUISITION AND COMPENSATION — Claim for costs incurred in course of proceeding —Land Acquisition and Compensation Act 1986 (Vic) s 91 — Consideration of s 91 factors in exercise of discretion —Whether amount of compensation awarded by the Court exceeded the amount offered by the Authority —Relevant ‘offer’ for the purposes of s 91(1)(a) — Competing Calderbank offers — Whether Claimants’ refusal of Calderbank offer was unreasonable — Whether proceedings affected by unreasonable conduct of the Claimants — Whether proceedings affected by an excessive claim for compensation by the Claimants — Whether indemnity costs should be paid— Claimants’ costs awarded on a standard basis but reduced by 50% in the circumstances — Certification of Counsel — Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435; Secretary to the Department of Transport v Provan’s Timber Pty Ltd(No 2) [2020] VSCA 258; Love v Roads Corporation [2011] VSCA 434; Plunkett v Roads Corporation(No 2) [2019] VSC 230; Secretary to the Department of Economic Development, Jobs, Transport and Resources v Caradi Pty Ltd(No 2) [2019] VSC 61; Head, Transport for Victoria v Lantrak Developments Pty Ltd (Costs) [2021] VSC 863 considered — Brompton Lodge Pty Ltd (in administration) v Head, Transport for Victoria [2020] VSC 797; Brompton Lodge Pty Ltd (in admin) v Head, Transport for Victoria & Anor (No 2) [2020] VSC 881 distinguished.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr D Batt KC Mr J Fetter	Rigby Cooke
For the Defendant	Mr J Pizer SC Mr M Roberts	Hall & Wilcox

TABLE OF CONTENTS

Introduction

Background

The compulsory acquisition
Commencement of proceedings
Particulars of claim and particulars of offer
Preparation for trial
Mediation
Joint Memorandum of Counsel
Authority’s Calderbank Offer
Claimants’ Calderbank Offer
Trial
Claimants’ decision to not call Mr Kingston to give evidence in the proceeding
Claimants’ briefing to Mr Haines
Claimants’ case as to hydrology and contamination
Claimants’ case in respect of solatium and disturbance losses

Amended Particulars of Offer
Decision and orders

Issues

Orders sought
Relevant law
Court’s jurisdiction in relation to costs under s 91 of the LAC Act
The ‘tilt’ in favour of dispossessed owners
Relevance of the Civil Procedure Act 2010 (Vic)

Section 91(1) matters which are enlivened by the circumstances

Analysis

Section 91(1)(a): whether the Claimants ‘beat’ the amount offered by the Authority
What are the relevant offers?
What weight should be given to s 91(1)(a)?

Section 91(1)(b)(i): Claimants’ refusal of the Authority’s Calderbank Offer
Stage of the proceedings at which the offer is received
Time allowed to the offeree to consider the offer
Claimants’ knowledge of the case put against them
Extent of compromise offered
Offerees’ prospects of success, assessed at the date of the offer
Clarity with which the terms of the offer were expressed
Whether the offer foreshadowed an application for indemnity costs
Comparison between the final outcome and the terms of the compromise
Was it unreasonable for the Claimants to refuse the Authority’s Calderbank Offer?

Section 91(1)(b)(i): Unreasonable conduct
Claimants’ denial of the relevance of the Previous Compensation
Claimants’ instructions to their land valuation expert Mr Haines
Claimants’ decision to not call Mr Kingston to give evidence at trial
Claimants’ ‘changing the case’

Section 91(1)(b)(iii): Excessive claim
Certification for three counsel

Conclusion

Orders

HER HONOUR:

INTRODUCTION

In these two proceedings, the plaintiff parties (the ‘Claimants’)[1] were successful in their claim for increased compensation in relation to the compulsory acquisition of two land holdings located in Dingley by the defendant, Head, Transport for Victoria (the ‘Authority’) on 29 March 2019 under the Land Acquisition and Compensation Act 1986 (Vic) (the ‘LAC Act’).
[1]David Ronald Kingston (‘Mr Kingston’ or ‘Kingston’) and Jomaring Pty Ltd (ACN 006 457 192) (‘Jomaring’), which is a company owned by Mr Kingston of which he is the sole director and secretary.

The lands in question (the ‘Acquired Land’),[2] the relevant legislation and planning scheme have a complicated history which is set out in detail in Kingston v HTV and Jomaring v HTV [2023] VSC 618 (the ‘Compensation Decision’).
[2]Comprising the ‘Acquired Kingston Land’ and the ‘Acquired Jomaring Land’. See Compensation Decision, [6]–[8].

The Compensation Decision was delivered on 23 October 2023. At that time, I made orders for the parties to provide proposed final orders and directed the parties to file and serve written submissions and any other material they wish to rely upon in respect of costs.

On 2 November 2023, I made orders in each of the proceedings prepared and agreed by the parties. Order 1[3] of each of those orders provided for an award of compensation to the Claimants pursuant to s 89(1) of the LAC Act in the sum of:

(a) for the Kingston Proceeding,[4] $1,112,943, which award was satisfied in part by the advance of compensation paid by the Authority to the Claimant of $610,187 on 9 May 2019; and

(b) for the Jomaring Proceeding,[5] $1,126,635, which award was satisfied in part by the advance of compensation paid by the Authority to the Claimant of $908,432 on 9 May 2019.

[3] I note that at the time of writing this decision, order 1 of each of these orders is subject to two applications for leave to appeal filed by each of the Claimants respectively in the Court of Appeal by way of Application for Leave to Appeal (filed 13 December 2023 in S EAPCI 2023 0136, Supreme Court of Victoria, Court of Appeal) and Application for Leave to Appeal (filed 13 December 2023 in S EAPCI 2023 0137, Supreme Court of Victoria, Court of Appeal).

[4] Kingston v Head, Transport for Victoria (S ECI 2020 04458) (‘Kingston Proceeding’).

[5] Jomaring v Head, Transport for Victoria (S ECI 2020 04463) (‘Jomaring Proceeding’).

Order 2 of each of the orders provided for an award of interest calculated pursuant to ss 53 and 56 of the LAC Act.

On 5 March 2024, I conducted a hearing where I heard from the parties in respect of costs (the ‘Costs Hearing’) and reserved my decision.

The Claimants seek payment of their costs of the proceeding on a standard basis. The Authority opposes the claim and seeks its costs of the proceeding on a standard basis to the date of the expiry of its Calderbank offer,[6] thereafter it seeks its costs on an indemnity basis.
[6]Discussed at [31]–[33] below.

As discussed further at [95]–[101] below, in determining the question of costs in this type of proceeding under the LAC Act, the Court may award such costs as it thinks proper taking into account the matters set out in s 91(1) of the LAC Act as it thinks appropriate. These matters include the amount of compensation awarded by the Court as compared to the amount offered by the Authority[7] and the extent to which unreasonable conduct of the parties has affected the proceedings.[8]
[7]LAC Act s 91(1)(a).
[8]LAC Act s 91(1)(b)(i).

BACKGROUND

The background to the compulsory acquisition is set out in detail in the Compensation Decision. By way of summary, I set out a brief chronology below, with reference to additional evidence regarding the litigation history adduced by the parties for the purposes of the costs decision.

The compulsory acquisition

On 29 March 2019, the Authority’s predecessor, the Roads Corporation (‘VicRoads’),[9] compulsorily acquired the Acquired Land owned by the Claimants.
[9]For the purposes of this decision, I refer to the Authority and VicRoads interchangeably as the ‘Authority’.

On 12 April 2019, the Authority made an initial offer of compensation to the Claimants pursuant to s 31 of the LAC Act of $1,518,619, comprising:

(a) $610,187 for the Acquired Kingston Land; and

(b) $908,432 for the Acquired Jomaring Land,

with each offer including $15,000 for professional expenses (‘2019 Pre‑litigation Offers’).

Commencement of proceedings

The Claimants did not accept the Authority’s 2019 Pre‑litigation Offers and on 13 July 2019, the matters in each of the proceedings became a disputed claim for the purposes of the LAC Act.

On 3 December 2020, the Kingston Proceeding and Jomaring Proceeding were commenced simultaneously in this Court, with the Claimants filing notices of referral of a disputed claim in each proceeding.

Particulars of claim and particulars of offer

On 14 December 2020, the Court made orders in each of the proceedings, ordering the parties respectively to file particulars of claim and particulars of offer.

On 16 February 2021, the Claimants filed particulars of claim in each proceeding (‘2021 Particulars of Claim’), collectively claiming $51,765,000 for market value in reliance on the valuation evidence of Mr Nicholas Haines of Matheson Stephen Valuations, together with claims for disturbance, solatium and professional expenses totalling $1,017,234.23.[10] Overall, the Claimants claimed $52,782,234.30 plus interest and costs.
[10]Particulars of Claim (filed 16 February 2021 in S ECI 2020 04458, Supreme Court of Victoria); Particulars of Claim (filed 16 February 2021 in S ECI 2020 04463, Supreme Court of Victoria).

On 26 March 2021, the Authority filed its particulars of offer (‘2021 Particulars of Offer’).[11] In total, it offered the Claimants $1,724,922.31, comprised of:

(a) for Kingston, $595,186 as market value compensation, plus $123,760.64 for professional expenses; and

(b) for Jomaring, $893,466 as market value compensation, plus $112,509.67 for professional expenses.

[11]Particulars of Offer (filed 26 March 2021 in S ECI 2020 04458, Supreme Court of Victoria); Particulars of Offer (filed 26 March 2021 in S ECI 2020 04463, Supreme Court of Victoria)

The Authority did not offer amounts for solatium or disturbance.

Preparation for trial

In the period from October 2021 to July 2023, the parties prepared in excess of 5,800 pages of material for the trial, comprising four statements from two lay witnesses and some 41 statements and reports from 15 experts across the fields of valuation, town planning, traffic engineering, contamination, civil engineering and hydrology.[12]
[12]Fourth Affidavit of Thomas Donaldson Callander (filed 15 November 2023 in S ECI 2020 04458, Supreme Court of Victoria) (‘Fourth Affidavit of Mr Callander’), 2 [10]. I note that by the orders of Judicial Registrar Keith made in both proceedings on 21 September 2022, evidence filed in one proceeding will stand as evidence in the other proceeding.

The bulk of the expert evidence was concerned with matters relevant to the question of the proper ‘C’ value for the purposes of s 41(7) of the LAC Act, if that provision was applicable.[13]
[13]Fourth Affidavit of Mr Callander, 2 [10].

By June 2023, the Claimants had engaged three counsel, Mr Batt KC, Mr O’Farrell and Mr Fetter.[14]
[14]Fourth Affidavit of Mr Callander, 2 [11].

Mediation

On 14 July 2023, the parties attended a mediation. By that stage, as set out in the Supplementary Joint Statement of Valuation Experts dated 10 July 2023,[15] the Claimants’ valuer, Mr Haines, had expressed the opinion that the ‘C’ value (combined, for both properties) was $39,865,000, on the assumptions most favourable to the Claimants, whereas the Authority’s valuer, Mr Willison, had expressed the view that it was $2.3 million on the assumptions most favourable to the Authority.
[15]Filed 10 July 2023 in S ECI 2020 04458 and S ECI 2020 04463, Supreme Court of Victoria.

Joint Memorandum of Counsel

Following the mediation, on 24 July 2023, as recorded in the Joint Memorandum of Counsel of the same date,[16] the parties agreed that the aggregate market value compensation (subject to any application of ss 41(5) and 41(7) of the LAC Act) was $34 million, comprised of:

(a) $11.9 million for Kingston; and

(b) $22.1 million for Jomaring.

[16]Exhibit to Affidavit of Thomas Donaldson Callander (filed 21 November 2023 in S ECI 2020 04458, Supreme Court of Victoria) (‘Exhibit TDC‑4’), 8–10 (‘Joint Memorandum of Counsel’).

The parties agreed that the aggregate compensation for pre‑referral professional expenses for the purposes of s 41(1)(f) of the LAC Act was $320,792.43, comprised of:

(a) $167,805.71 for Kingston; and

(b) $152,986.72 for Jomaring.

The expenses amounts were the updated amounts claimed by the Claimants (on a GST‑exclusive basis) in the proceedings.[17]
[17]Fourth Affidavit of Mr Callander, 3 [13].

From this time, the Claimants were pursuing in the Court a primary claim that they should receive $34 million in market value compensation, plus $320,792.43 expenses compensation and $700,000 by way of solatium, totalling $35,020,792 in quantified sums, plus an unquantified disturbance loss claim.[18]
[18]Fourth Affidavit of Mr Callander, 3 [14].

Mr Thomas Callander, solicitor for the Claimants, stated in his fourth affidavit that if judgment had been given for the quantified amount on 28 July 2023, then he caused interest under ss 53 and 56 of the LAC Act (taking into account advances) to be calculated as $14,478,523. Accordingly, he says, as at 28 July 2023, the Claimants’ primary claim was for at least $49,499,315.[19]
[19]Fourth Affidavit of Mr Callander, 3 [14].

Mr Callander’s affidavit further states that the Claimants had an alternative position, in case the formula in s 41(7) of the LAC Act was held to apply.[20] Mr Callander states that Mr Haines had expressed in his reports the opinion that the ‘B’ value was $980,000 for Jomaring and $3,385,000 for Kingston. That meant that, if the formula applied, the market value compensation might only be reduced by 29.6% for Jomaring and by 3.1% for Kingston.
[20]Fourth Affidavit of Mr Callander, 3 [15].

Mr Callander states that, accordingly, given the agreed ‘C’ values, there was the prospect that, if s 41(7) applied but Mr Haines’ evidence about the ‘B’ values was accepted, the Court might award market value compensation of approximately $27,089,500, being:[21]

(a) $15,558,400 for Jomaring ($22,100,000 less 29.6%); and

(b) $11,531,100 for Kingston ($11,900,000 less 3.1%).

[21]Fourth Affidavit of Mr Callander, 3 [16].

Accordingly, Mr Callander says that the Claimants’ alternative claim was for (rounded) $27,089,500 market value compensation, plus $700,000 solatium, plus $320,792 expenses, totalling $28,110,292 plus an unquantified disturbance loss claim.[22] He says that if judgment had been given for the quantified amount on 28 July 2023, then he had caused interest under ss 53 and 56 of the LAC Act to have been calculated as $11,485,235, taking into account advances. Accordingly, as at 28 July 2023, the alternative claim was for at least $39,595,527.[23]
[22]Fourth Affidavit of Mr Callander, 4 [17].
[23]Fourth Affidavit of Mr Callander, 4 [17].

Mr Callander says that following the mediation, he decided to retain three counsel in the case, stating that even though the evidence was materially reduced by the agreement on the ‘C’ values, he still considered it appropriate to have three counsel, given the size of the claim, the complexity of the legal and valuation issues, and the documentary material that remained relevant.[24] He also noted that he was generally the only solicitor from his firm working on the proceedings, which placed greater demands on counsel.
[24]Fourth Affidavit of Mr Callander, 4 [18].

On 28 July 2023, five days before the commencement of trial, the Claimants submitted that they were pursuing a primary claim worth at least $49.499 million in compensation and interest, and an alternative claim worth $39.596 million, and had already incurred approximately $1.708 million in costs in the litigation.[25]
[25]Claimants’ Outline of Submissions on Costs (filed 15 November 2023 in S ECI 2020 04458, Supreme Court of Victoria) (‘Claimants’ Costs Submissions’), 2 [3(b)].

Authority’s Calderbank Offer

On 28 July 2023, the Authority made a Calderbank offer for $6.5 million on an ‘all in’ basis, that is, including interest and costs and inclusive of amounts previously advanced in the amount of $1,518,619 and with no GST payable (‘Authority’s Calderbank Offer’).[26]
[26]Exhibit TDC‑4, 1–4.

The Authority’s Calderbank Offer was set to expire at 10:00am on Wednesday 2 August 2023, which was 30 minutes prior to the scheduled beginning of the trial and five calendar days from the time of receipt (comprised of three business days and two weekend days).

Claimants’ Calderbank Offer

Late on the previous day, Thursday 27 July 2023, Mr Kingston had instructed Mr Callander to make a Calderbank offer to the Authority in writing on behalf of both Claimants.[27]
[27]Fourth Affidavit of Mr Callander, 4 [19].

On 28 July 2023 at 7:36pm, after receiving the Authority’s Calderbank Offer, the Claimants sent their own Calderbank offer to the Authority’s solicitors (‘Claimants’ Calderbank Offer’).[28] In the Claimants’ Calderbank Offer, the Claimants offered to settle the proceedings on the basis that the Authority would pay $30,240,792.43 in respect of market value and pre‑referral professional expenses, plus unspecified amounts in respect of interest and post‑referral professional expenses.[29]
[28]Fourth Affidavit of Mr Callander, 5 [28].
[29]Sixth Affidavit of Kathryn Anne Howard (filed 15 November 2023 in S ECI 2020 04463, Supreme Court of Victoria) (‘Sixth Affidavit of Ms Howard’), 14 [61]; Sixth Affidavit of Ms Howard, Exhibit KAH‑4 (‘Exhibit KAH‑4’), 83–87.

On 4 August 2023, the Authority’s solicitor responded to the Claimants’ solicitor rejecting the offer put by the Claimants in the Claimants’ Calderbank Offer.[30]
[30]Exhibit KAH‑4, 88–89.

On the same day at 4:36pm, the Claimants’ solicitor responded, articulating and restating the offer contained in the Claimants’ Calderbank Offer, which was said to be open for acceptance until 4:00pm on 7 August 2023.[31]
[31]Exhibit KAH‑4, 90–92.

On 7 August 2023, the Authority rejected the Claimants’ offer.[32]
[32]Exhibit KAH‑4, 93.

Trial

The trial of these proceedings were heard together, commencing on Wednesday 2 August 2023 and concluding on Thursday 17 August 2023.

In its submissions in respect of costs, the Authority identified certain conduct of the Claimants in the course of the trial to be of relevance to the determination of costs, being the Claimants’:

(a) decision not to call Mr Kingston to give evidence in the proceeding;

(b) briefing of their valuation expert Mr Haines; and

(c) case put in relation to hydrology and contamination.

Each of these points are described — as a matter of fact — in relation to the Claimants’ conduct below. These matters are further analysed by reference to the parties’ submissions in [198]–[286] of this decision.

Claimants’ decision to not call Mr Kingston to give evidence in the proceeding

On the morning of 1 August 2023, being the day before the commencement of the trial, the Claimants’ decided to not to call Mr Kingston to give evidence in the proceedings. The Claimants’ solicitor states that prior to that time, they had intended to call Mr Kingston.[33] The Authority was notified of this decision at about 9:00am on 1 August 2023, by telephone call between Senior Counsel.[34]
[33]Fifth Affidavit of Thomas Donaldson Callander sworn 29 November 2023 (filed in S ECI 2020 04458, Supreme Court of Victoria) (‘Fifth Affidavit of Mr Callander’), 2 [7].
[34]Fifth Affidavit of Mr Callander, 2 [7].

Prior to this point, two witness statements by Mr Kingston had been filed in the proceedings.[35] Ms Kathryn Howard, solicitor for the Authority, states in her affidavit that significant work had been completed by the parties in response to those statements, including 18 pages of objections which has been prepared by the Authority in response to Mr Kingston’s first witness statement.[36] By orders dated 25 July 2023, the parties were required to confer and circulate a document setting out the objections that remained in dispute by 4 August 2023. Ms Howard states that an agreement was reached between the parties on aspects of the objections, however substantial objections remained unresolved until the Authority was advised about the non‑calling of Mr Kingston on 1 August 2023.[37]
[35]Statement of David Ronald Kingston (filed 22 October 2021 in S ECI 2020 04458, Supreme Court of Victoria) (‘First Kingston Statement’); Statement of David Ronald Kingston (filed 9 December 2022 in S ECI 2020 04458, Supreme Court of Victoria) (‘Second Kingston Statement’).
[36]Exhibit KAH‑4, 19.
[37]Sixth Affidavit of Ms Howard, 5 [17].

Ms Howard also states that the Court Book had also been finalised having regard to both of Mr Kingston’s statements.[38]
[38]Sixth Affidavit of Ms Howard, 5 [16].

During the trial, counsel for the Authority foreshadowed that the Authority would be seeking its costs thrown away as a result of the lateness of the notification that Mr Kingston would not be called.[39]
[39]Sixth Affidavit of Ms Howard, 5 [18]; Transcript of the Proceedings (Supreme Court of Victoria, S ECI 2020 04458 and S ECI 2020 04463, Quigley J, 2–17 August 2023), 107, lines 24–31 (‘Transcript of the Trial’).

Claimants’ briefing to Mr Haines

As a result of Mr Kingston’s withdrawal, on 7 August 2023, the solicitors for the Authority received a letter from the Claimants’ solicitor stating that the Claimants had issued a further instruction to Mr Haines two days earlier, on 5 August 2023 (the ‘5 August Instruction’).[40] The 5 August Instruction stated that the Claimants were withdrawing parts of the instruction previously issued to Mr Haines on 3 June 2019 that related to the sale of the land referred to in the proceedings as the ‘Permanent Trustee Land’.[41]
[40]Sixth Affidavit of Ms Howard, 5 [19]; Exhibit KAH‑4, 20–4.
[41]Sixth Affidavit of Ms Howard, 5 [19]; Exhibit KAH‑4, 20–4. Permanent Trustee Land is defined in the Compensation Decision at [39].

The first expert witness statement of Mr Haines dated 21 December 2021 contained Mr Haines’ historical valuations of the Jomaring and Kingston properties as at 1983 and 1984.[42] Mr Haines disregarded the sale of the Permanent Trustee Land (and the Coram Land[43]) in arriving at rates per hectare considerably higher than the historical valuations of Mr Keck and Mr Colson. By the Joint Statement of Valuation Experts dated 16 November 2022, Mr Haines expressed his opinion ‘that the Kingston land is at a rate 25% less than for the Jomaring Land’.[44]
[42]Statement of Nicholas Andrew Haines (filed 22 December 2021 in S ECI 2020 04458, Supreme Court of Victoria) (‘First Haines Statement’).
[43]Defined in the Compensation Decision, [22].
[44]Joint Statement of Valuation Experts (filed 16 November 2022 in S ECI 2020 04458 and S ECI 2020 04463, Supreme Court of Victoria), 3, 9.

The Authority states that no reference was made through the parties’ expert valuation evidence or joint conferences of valuation experts to a sale of land that became known, during the trial, as the ‘Follett Land’.[45]
[45] Sixth Affidavit of Ms Howard, 6 [20]. ‘Follett Land’ is defined in the Compensation Decision, [22].

On 3 August 2023, being the second day of the trial, the Authority’s solicitor received from the Claimants’ solicitor a bundle of new documents concerning the sale of the Follett Land. This 1979 sale of the Follett Land to AMP became a comparable sale upon which the Claimants sought to rely.[46]
[46]Sixth Affidavit of Ms Howard, 6 [21]; citing Transcript of the Trial, 617, line 18.

Claimants’ case as to hydrology and contamination

By [3] of its 2021 Particulars of Offer, the Authority reserved the right to revise its offer in circumstances relating to hydrology or contamination, which they say pleaded that valuation of the Properties may be affected by issues of hydrology or contamination.[47]
[47]Sixth Affidavit of Ms Howard, 6 [22].

By orders dated April 2021, the Claimants were to file their expert evidence by 14 December 2021. There was no provision in the orders for reply evidence. The Claimants did not lead expert evidence in the disciplines of hydrology or contamination in 2021, although the Authority states that the First Haines Statement did have regard to the hydrological condition of the Acquired Land when opining on the market value of that land.[48]
[48]Sixth Affidavit of Ms Howard, 6 [23].

The Authority had filed extensive expert evidence in response to the issues in dispute, including expert opinions on hydrology and contamination which were filed in March 2022.[49]
[49]Sixth Affidavit of Ms Howard, 6 [24].

Ms Howard states in her affidavit that she first received the Claimants’ contamination and civil engineering evidence, the latter of which considered hydrology, on 6 May 2022. She states that the assessment undertaken by the Claimants’ hydrology expert did not contain hydraulic modelling.[50] The 6 May 2022 letter stated that a further report, dealing with hydrological issues, would also be produced. Ms Howard says she first received the Claimants’ hydrology evidence on 20 May 2022.[51]
[50]KAH‑4, 27–29.
[51]Sixth Affidavit of Ms Howard, 7 [25]; Exhibit KAH‑4, 27–9.

In August 2022, contamination and hydrology evidence was filed by the Authority in response to the Claimants’ new evidence. The hydrology evidence included hydraulic modelling to determine the developable land area in relation to both properties.[52]
[52]Sixth Affidavit of Ms Howard, 7 [26].

By orders dated 21 September 2022, the joint expert conclave process was to be completed by 25 November 2022.[53]
[53]Sixth Affidavit of Ms Howard, 7 [27].

On 19 October 2022, Mr Callander sent Ms Howard an email attaching two new concept plans which provided ‘for some further options for hypothetical development of the land’, and regarding which Mr Callander stated that ‘the Claimants may seek to rely upon those plans in addition to the plans already in evidence’ (the ‘October Plans’). One of the October Plans provided for a planning scenario that was not the subject of evidence filed in the proceedings.[54]
[54]Sixth Affidavit of Ms Howard, 7 [28].

On 28 October 2022, a Joint Statement of Hydrology and Civil Engineering Experts was filed (‘Joint Hydrology Statement’).[55] At the joint conclave, the only modelling before the experts was that prepared by the Authority’s hydrologist. The Joint Hydrology Statement did not identify developable land areas utilising the modelling that was available to the parties, stating that the Claimants would ‘undertake further hydraulic modelling … to test scenarios that optimise the developable area’.[56]
[55]Joint Statement of Hydrology and Civil Engineering Experts (filed 28 October 2022 in S ECI 2020 04458 and S ECI 2020 04463, Supreme Court of Victoria).
[56]Sixth Affidavit of Ms Howard, 7 [29].

On 3 November 2022, the Joint Statement of Planning Experts was filed.[57] The joint conclave occurred on 15 September 2022, which considered those plans that formed part of the Claimants’ December 2021 evidence.[58]
[57]Filed 11 November 2022 in S ECI 2020 04458 and S ECI 2020 04463, Supreme Court of Victoria. There is a mistake in the document header which refers to the document as the ‘Joint Statement of Contamination Experts’.
[58]Sixth Affidavit of Ms Howard, 8 [30].

On 11 November 2022, the Joint Statement of Planning Experts was filed.[59] The planning experts met on 11, 19 and 25 October 2023 and Ms Howard states in her affidavit that the October Plans were not considered.[60]
[59]Filed 11 November 2022 in S ECI 2020 04458 and S ECI 2020 04463, Supreme Court of Victoria.
[60]Sixth Affidavit of Ms Howard, 8 [31].

By letters dated 24 October and 2, 11, 18 and 25 November 2022, Ms Howard expressed her concern that the introduction of new evidence at that late stage would mean the February 2023 trial date would not be able to be held and an adjournment would be required.[61]
[61]Sixth Affidavit of Ms Howard, 8 [32]; Exhibit KAH‑4, 33–43.

By letters dated 25 and 30 November 2022, the Claimants produced nine new expert and lay statements that they sought to introduce into the proceedings. These comprised:[62]
[62]Sixth Affidavit of Ms Howard, 8 [32].

(a) three statements addressing hydrological issues, which provided a model that sought to address flooding in a way that had not been addressed by the Authority;

(b) one statement which considered five concept plans, three of which were not in evidence in the proceedings and one which addressed a scenario which did not respond to the opinion of planning experts in the proceedings at that time; and

(c) a new valuation report of Mr Haines dated 23 November 2022 (the ‘Second Haines Statement’), which responded to a letter of instruction dated 15 June 2022 and did not respond to the Claimants’ other new evidence.

The balance of the evidence addressed novel issues of contamination in traffic and further lay evidence of Mr Kingston.

After a contested directions hearing, orders were made on 8 December 2022, by which inter alia the Claimants were granted leave to file their new suite of documents and the original trial date of 13 February 2023 was adjourned by six months, to commence on 2 August 2023.[63]
[63]Sixth Affidavit of Ms Howard, 8, [33].

The Authority says that as a result of this adjournment, interest accrued across both proceedings at a total of approximately $32,405 for the intervening six‑month period until the trial ultimately commenced, having regard to the judgment sum awarded.[64]
[64]Sixth Affidavit of Ms Howard, 10, [35].

On 15 December 2022, the Authority received a letter from the Claimants attaching a suite of concept plans upon which they intended to rely upon in the proceedings.[65] Ms Howard states that in December 2022, she instructed the Authority’s experts to opine on these concept plans in accordance with this directive from the Claimants.[66]
[65]Exhibit KAH‑4, 48–51.
[66]Sixth Affidavit of Ms Howard, 10, [36].

On 3 March 2023, the Authority sent a letter to the Claimants advising that the developable land areas listed in the Second (Supplementary) Joint Statement of Hydrology and Civil Engineering Experts dated 10 February 2023[67] did not appear to correspond to those contained in the Claimants’ concept plans in evidence to date.[68] The Authority sought to clarify a clear position with respect to the concept plans and developable land areas, and invited counsel for the parties to confer with a view to narrowing the issues in dispute and agreeing concept plans that properly reflected the positions advanced by the parties’ experts.[69]
[67]Filed 10 February 2023 in S ECI 2020 04463 and S ECI 2020 04458, Supreme Court of Victoria.
[68]Exhibit KAH‑4, 52–3.
[69]Sixth Affidavit of Ms Howard, 10, [37]; Exhibit KAH‑4, 52–3.

On 10 March 2023, the Claimants agreed to this course of action.[70]
[70]Sixth Affidavit of Ms Howard, 10, [38]; Exhibit KAH‑4, 54–6.

On 28 March 2023, the Claimants produced five ‘updated’ concept plans dated 24 March 2023, as well as correlating developable land areas, and suggested that these new concept plans be provided to the parties’ experts for further consideration.[71]
[71]Sixth Affidavit of Ms Howard, 10, [39]; Exhibit KAH‑4, 57–61.

On 13 April 2023, the Claimants sent a letter to the Authority which attached three ‘revised’ concept plans dated 12 April 2023 (the ‘New Plans’). These were said to be ‘prepared in furtherance of discussions in an endeavour to streamline plans having regard to the evidence and joint statements’.[72]
[72]Sixth Affidavit of Ms Howard, 11, [40]; Exhibit KAH‑4, 62–3.

On 17 April 2023, the Authority consented to the New Plans and received confirmation from the Claimants later that day.[73]
[73]Sixth Affidavit of Ms Howard, 11, [41]–[42]; Exhibit KAH‑4, 64–6.

The parties agreed orders, ultimately made by the Court on 18 April 2023, which accommodated the Claimants’ new planning evidence (which enclosed the New Plans), and timetabled supplementary expert evidence and conclaves that relied on these plans.[74]
[74]Sixth Affidavit of Ms Howard, 11, [43].

The New Plans were the subject of the expert evidence filed in the proceedings from that time, which concerned hydrology, planning, contamination and valuation.[75]
[75]Sixth Affidavit of Ms Howard, 11, [44].

On 13 June 2023, the Claimants sent a further expert report of Mr Haines (the ‘Third Haines Statement’) to the Authority.[76] This was received after the parties’ joint conference of valuation experts was scheduled to have commenced and there was no order permitting Mr Haines to prepare this further report.[77]
[76]Sixth Affidavit of Ms Howard, 11, [45]; Exhibit KAH‑4, 67.
[77]Sixth Affidavit of Ms Howard, 11, [45].

On 28 June 2023, the Joint Statement of Valuation Experts of Mr Haines and Mr Willison was filed.[78]
[78]Sixth Affidavit of Ms Howard, 11, [46]; Joint Statement of Valuation Experts (NA Haines & M Willison) (filed 28 June 2023 in S ECI 2020 04463, Supreme Court of Victoria).

On 4 July 2023, the Claimants advised that:[79]
[79]Sixth Affidavit of Ms Howard, 11, [47]; Exhibit KAH‑4, 68–70.

(a) Mr Haines had been instructed to conduct a further review of his previous valuations including with regard to the concept plans produced by the Claimants in the proceedings on 20 December 2021;

(b) Mr Haines’ review was anticipated by 10 July 2023; and

(c) this may require further conclave and the preparation of a further joint statement of the valuers.

At the 5 July 2023 directions hearing, leave was granted for the filing of the Third Haines Statement, which the Claimants ultimately filed on 6 July 2023.[80] At the hearing, I commented that:[81]

I am very conscious that we keep this matter on track for the 2 August trial date, and I do not want to take any steps that would potentially require a whole round of additional witness statements.

[80]Sixth Affidavit of Ms Howard, 12, [48]; Statement of Expert Evidence – Nicholas Andrew Haines (filed 6 July 2023 in S ECI 2020 04458, Supreme Court of Victoria).

[81]Transcript of the Proceeding (Supreme Court of Victoria, ECI 2020 04458 and S ECI 2020 04463, Quigley J, 5 July 2023), 71–2, lines 30–31 and 1–2.

On the same day, the Claimants instructed Mr Haines to prepare a further statement, which was served on 12 July 2023 (the ‘Fourth Haines Statement’).[82] Ms Howard states that this statement addressed concept plans that the Authority had understood were no longer being relied upon, as well as two further concept plans dated 5 July 2023.
[82]Sixth Affidavit of Ms Howard, 12, [49].

On 13 July 2023, the Authority sent a letter to the Claimants objecting to the Fourth Haines Statement.[83]
[83]Sixth Affidavit of Ms Howard, 12, [50]; Exhibit KAH‑4, 72–4.

On 13 July 2023, the Claimants filed the Fourth Haines Statement[84] and circulated this statement by letter, noting that they would be seeking a regularising order from the Court and sought the Authority’s consent to this course.[85]
[84]Statement of Expert Evidence – Nicholas Andrew Haines (filed 13 July 2023 in S ECI 2020 04458, Supreme Court of Victoria).
[85]Sixth Affidavit of Ms Howard, 13, [51]; Exhibit KAH‑4, 75.

On 17 July 2023, the Authority sent a letter to the Claimants stating that it did not consent to orders allowing for the filing of the Fourth Haines Statement.[86]
[86]Sixth Affidavit of Ms Howard, 13, [52]; Exhibit KAH‑4, 76–7.

The parties were to appear before me at a directions hearing on 20 July 2023, which was ultimately adjourned to allow the parties to confer and which resulted in the parties agreeing market value and professional expenses as documented in the Joint Memorandum of Counsel dated 24 July 2023.[87]
[87]Sixth Affidavit of Ms Howard, 13, [53].

Claimants’ case in respect of solatium and disturbance losses

The Claimants’ Particulars of Claim claimed specific entitlements with respect to solatium and disturbance losses, in accordance with ss 44 and 41(1)(d) of the LAC Act.[88]
[88]Sixth Affidavit of Ms Howard, 13, [54].

The First Kingston Statement provided evidence supporting the Claimants’ claims for solatium and disturbance.[89]
[89]Sixth Affidavit of Ms Howard, 13, [55] citing the First Kingston Statement at [151]–[154].

The parties’ outline of opening submissions dealt with the Claimants’ claims for solatium and disturbance.[90]
[90]Sixth Affidavit of Ms Howard, 13, [56].

On the morning of 1 August 2023, the Claimants first advised the Authority that they were no longer calling Mr Kingston. However, the Claimants maintained the claims for solatium and disturbance in their opening submissions (depending on what came out in evidence) and withdrew them in closing submissions.[91]
[91]Sixth Affidavit of Ms Howard, 13, [57].

Amended Particulars of Offer

On 30 August 2023, 13 days after the trial concluded, the Authority filed its Amended Particulars of Offer in each proceeding,[92] to correspond with its closing submissions.[93] It made a primary offer based on Mr Colson’s valuations, of a combined $2,012,769, comprised of:

(a) $886,134 for Kingston; and

(b) $1,126,635 for Jomaring.

[92]Amended Particulars of Offer (filed 30 August 2023 in S ECI 2020 04458, Supreme Court of Victoria) and Amended Particulars of Offer (filed 30 August 2023 in S ECI 2020 04463, Supreme Court of Victoria) (the ‘Amended Particulars of Offer for Jomaring’).

[93]Fourth Affidavit of Mr Callander, 5 [30].

It also made an alternative offer, based on Mr Keck’s valuations of $1,112,977 ($1,112,977 for Kingston and $0 for Jomaring) which was said to be in total compensation, including professional expenses.

Decision and orders

On 23 October 2023, the Compensation Decision was delivered, holding that the Claimants were entitled to $2,239,578 in compensation across both proceedings, exclusive of interest and costs, comprising:

(a) $1,112,943 for the Kingston Proceeding; and

(b) $1,126,635 for the Jomaring Proceeding.

Taking into account amounts already advanced, the Authority was ordered to pay in aggregate the sum of $1,024,295.27 by 1 December 2023, comprising $720,882.82 for Kingston and $303,412.45 for Jomaring.

ISSUES
Orders sought

The Claimants seek orders for their costs in both proceedings on a standard basis and for certification for three counsel pursuant to s 91 of the LAC Act.

The Authority seeks an order that the Claimants pay the Authority’s costs:

(a) on a standard basis until 10:00am on 2 August 2023, being the time when the Authority’s Calderbank Offer lapsed (the ‘Pre‑Calderbank Period’); and

(b) on an indemnity basis from 10:00am on 2 August 2023 (the ‘Post‑Calderbank Period’).

In the Pre‑Calderbank Period, the Authority relies principally on four matters, being that the Claimants should not have:

(a) sought to deny the relevance of previous compensation paid in respect of the Acquired Land (‘Previous Compensation’);[94]
[94]See Compensation Decision, [3]–[5], [75]–[96], [168]–[245]. A key point of contention between the parties in the Compensation Decision was whether previous payments made in respect of the Acquired Land in 1984 under the Town and Country Planning Act 1961 (Vic) were to be taken into account under s 41(5) of the LAC Act.

(b) instructed Mr Haines to assume certain matters in respect of the sale of the Permanent Trustee Land;

(c) decided, on the eve of trial, not to call Mr Kingston as a witness even though he had previously prepared, filed and served lengthy witness statements; and

(d) increased the cost of the proceedings and the interest payable under the LAC Act by ‘changing the case’ in the way that they did.

In the Post-Calderbank Period, the Authority relies on these four matters in conjunction with the Claimants’ refusal of the Authority’s Calderbank Offer.

Relevant law

It is clear from the submissions that the parties agree on the principles applicable to costs awards made under the LAC Act.[95]
[95]See, eg, Transcript of the Proceedings (Supreme Court of Victoria, S ECI 2020 04458 and S ECI 2020 04463, Quigley J, 5 March 2024) (‘Transcript of the Costs Hearing’), 3, lines 13–19.

Court’s jurisdiction in relation to costs under s 91 of the LAC Act

Both parties correctly accept that the source of the Court’s power to award costs in compulsory acquisition proceedings is contained in s 91 of the LAC Act,[96] which provides as follows:
[96]Love v Roads Corporation [2011] VSCA 434 (‘Love’), [139], [147]; Secretary to the Department of Transport v Provan’s Timber Pty Ltd(No 2) [2020] VSCA 258 (‘Provans’), [36].

91 Costs
(1) In any proceedings under this Part, the Tribunal or the Court (as the case requires) may award such costs as it thinks proper but in making an order for costs must, if the Tribunal or Court considers it appropriate to do so, take into consideration—
(a) the amount of compensation awarded by the Tribunal or Court as compared with the amount (if any) offered by the Authority; and
(b) the extent to which, in the opinion of the Tribunal or Court, the proceedings have arisen from, or been affected by—
(i) unreasonable conduct on the part of the claimant or the Authority; or
(ii) the failure of the claimant to give adequate particulars of the claim or supply supporting material when required to do so; or
(iii) an excessive claim by the claimant; or
(iv) an unduly depressed offer by the Authority; and

(c) any other matters which under this Act are to be taken into account in determining the allocation of costs.

Under s 91, the Court has an overarching discretion to award such costs as it thinks ‘proper’. In accordance with the text of s 91, in forming a view about what is ‘proper’, the Court must, if it considers it appropriate to do so, take into consideration the matters set out in s 91(1)(a)–(c).[97]
[97]Love, [147], [148]; Provans, [37].

The ‘tilt’ in favour of dispossessed owners

In assessing what is proper, it is well recognised that within the context of the overarching discretion of the Court there is a so‑called ‘tilt’ in favour of dispossessed owners.[98] This is described by their Honours Chief Justice Warren, Justice of Appeal Tate and Acting Justice of Appeal Emerton in Love at [173]:[99]

We accept that the position of a claimant in proceedings under the Act is not that of an ordinary litigant and that the starting point for the exercise of the Court’s discretion as to costs is that the dispossessed owner should recover the costs of making the claim. The discretion as to costs in compensation proceedings is tilted in favour of the claimant.

[98]Love, [173]; Provans [38]–[41].

[99]Which was cited with approval in Provans, [39].

The Claimants and Authority agree this ‘tilt’ applies. They also correctly accept that the ‘tilt’ does not serve to fetter the discretion conferred by s 91, which is explained by Justices of Appeal Tate, Kyrou and McLeish in Provans as follows:[100]

However, recognising the difference between compulsory acquisition cases and ordinary claims in general jurisdiction does not serve to fetter the discretion under s 91, which remains broad. As observed by Wells J in Minister for the Environment v Florence, in the passage extracted by Osborn J in Roads Corp, there is no hard and fast rule governing the exercise of the discretion.

[100] Provans, [42] (citation omitted).

Indeed, in their submissions, the Claimants accept that this ‘tilt’ is not equivalent to a hard ‘presumption’ in relation to costs.[101] Rather, ‘[e]ach case will be different and dependent on its own facts’.[102]
[101]Plunkett v Roads Corporation (No 2) [2019] VSC 230, [7] (‘Plunkett (No 2)’).
[102]Secretary to the Department of Economic Development, Jobs, Transport and Resources v Caradi Pty Ltd(No 2) [2019] VSC 61, [42] (‘Caradi (No 2)’).

At the Costs Hearing, there was some jousting between the parties as to how much weight should given to the ‘tilt’ in the circumstances of this case. The Claimants submitted that the tilt is a ‘decided’ one, particularly in circumstances where the claimant recovers more than what was offered.[103]
[103]Claimants’ Reply Submissions on Costs, 2 [2]; Claimants’ Costs Submissions, 3 [5].

By contrast, the Authority emphasised the Court’s broad discretion, submitting that the notion of a ‘tilt’ in favour of claimants is most sensibly utilised where the seesaw is ‘evenly’ or ‘finely’ balanced, and in that scenario, it is helpful to refer to a ‘tilt’ in favour of claimants as a means of breaking that deadlock. However, it submitted that, critically, that is not the case here.[104]
[104]Respondent’s Reply Submissions on Costs, 2 [8]; Transcript of the Costs Hearing, 106, lines 17–23.

In my view, it is enough to say that the Court’s approach to the consideration of any ‘tilt’ in favour of a claimant is but one of the considerations to be taken into account. It is not a presumption in the claimant’s favour but I accept that where there is a choice to be made in this type of claim that the ‘tilt’ will generally favour the claimant. However, the application of this consideration is not determinative and I endorse the comments of Justice Richards in Plunkett (No 2).[105]

Relevance of the Civil Procedure Act 2010 (Vic)

[105]At [6]–[7].

The Authority also referred me to the judgment of her Honour Justice Richards in Head, Transport for Victoria v Lantrak Developments Pty Ltd (Costs) [2021] VSC 863 (‘Lantrak (Costs)’) at [14], in which her Honour stated that:

The Civil Procedure Act 2010 (Vic) applies to proceedings under the LAC Act, to claimants and acquiring authorities alike. The ‘tilt’ in favour of claimants whose land has been compulsorily acquired does not relieve them of their obligations under the Civil Procedure Act.

The Authority submitted that under the Civil Procedure Act 2010 (Vic) (‘Civil Procedure Act’), when determining costs this Court must have regard to any breach of an overarching obligation, so it is not the case that what is set out in s 91 is an exclusive code as to what the Court needs to take into account.[106] It submitted that the ‘tilt’ does not relieve the Claimants of cost consequences when they have engaged in unreasonable conduct or made an excessive claim which, it says, is self‑evident from the language in the section.[107] In accordance with my comments below at [282], [313] and [321], I agree that the Civil Procedure Act is relevant to the award of costs in this jurisdiction.
[106]Transcript of the Costs Hearing, 106–107, lines 24–31 and 1–2.
[107]Transcript of the Costs Hearing, 107, lines 2–7.

Section 91(1) matters which are enlivened by the circumstances

In support of their submissions, the parties identified various factual circumstances which they say enliven certain matters set out in s 91(1). The relevant factual circumstances (and the subsection of s 91(1) which they relate to) can be summarised as follows:

(a) Section 91(1)(a): whether the Claimants ‘beat’ the amount offered by the Authority;

(b) Section 91(1)(b)(i): whether the Claimants acted unreasonably in respect of the Authority’s Calderbank Offer;

(c) Section 91(1)(b)(i): whether the proceedings were affected by unreasonable conduct of the Claimants, being the:

(i) Claimants’ denial of the relevance of the Previous Compensation;

(ii) Claimants’ instructions to their land valuation expert Mr Haines;

(iii) Claimants’ decision to not call Mr Kingston to give evidence at trial; and

(iv) Claimants’ ‘changing the case’; and

(d) Section 91(1)(b)(iii): whether the proceedings were affected by an excessive claim for compensation by the Claimants.

These considerations are analysed below by reference to the parties’ respective submissions.

ANALYSIS

Section 91(1)(a): whether the Claimants ‘beat’ the amount offered by the Authority

Section 91(1)(a) requires the Court to take into consideration, if it considers it appropriate to do so, the amount of compensation awarded by the Court as compared with the amount (if any) offered by the Authority.

What are the relevant offers?

The Claimants submit that the relevant amount offered for the purposes of s 91(1)(a) is that which is set out in the Authority’s 2019 Pre‑litigation Offers, which were $1,518,619 in total.[108] The Claimants compared this with the $2,239,578 awarded in the Compensation Decision, together with $303,336.27 interest, to submit that they ‘beat’ the Authority’s 2019 Pre‑litigation Offers by nearly 50%.[109]
[108]See [11] above; Claimants’ Outline of Submissions on Costs (filed 15 November 2023 in S ECI 2020 04458, Supreme Court of Victoria) (‘Claimants’ Costs Submissions’), 4 [10].
[109]Claimants’ Costs Submissions, 4 [10]; Transcript of the Costs Hearing, 7, lines 21–6.

By contrast, the Authority submits that the Authority’s 2021 Particulars of Offer are the relevant offers. The Authority submits that these offers were for $1,724,922.31 (excluding interest and costs) and the compensation awarded by the Court — which it says was based on the Authority’s evidence rather than the Claimants’ evidence — was $2,239,578 (excluding interest and costs).[110]
[110]Respondent’s Submissions on Costs (filed 15 November 2023 in S ECI 2020 04463, Supreme Court of Victoria) (‘Respondent’s Costs Submissions’), 3 [9].

The Authority submitted that the 2021 Particulars of Offer constitute the relevant offers for the purposes of s 91(1)(a) because they are properly characterised as offers ‘formally [made] in the context of the regime for compensation set out in the LAC Act’.[111]
[111]Respondent’s Reply Submissions on Costs (filed 29 November 2023 in S ECI 2020 04463, Supreme Court of Victoria) (‘Respondent’s Reply Submissions on Costs’), 3 [12] citing Coastal Estates Pty Ltd v Shire of Bass [1994] 1 VR 210 at 213, 216, Roads Corporation v Love(No 2) (2010) 31 VR 551 (‘Roads Corporation’), [23] and Caradi (No 2), [33], where I stated that:
In my view, consideration of the phrase ‘amount (if any) offered’ in s 91(1)(a) must mean an amount formally offered in the context of the regime for compensation set out in the LAC Act. It may include a clear statement proffered in terms of an offer to settle the proceedings after an initial offer, but it does not include a position statement such as that set out in the opening submissions of the Authority in this matter. In my view, the term ‘offered’ used in the context of the LAC Act must mean something more formal than a position statement in submissions.

The Claimants disagree that the Authority’s 2021 Particulars of Offer constitute the relevant offers, but submitted that even if they did, those offers were still less than the amount awarded.[112] The Authority conceded that, for this reason, the issue is of no real consequence.[113] However, it submits that the various offers, including the Authority’s Calderbank Offer, remain relevant as part of the context for the Court’s assessment of the reasonableness of the Claimants’ conduct under s 91(1)(b)(i).[114]
[112]Claimants’ Costs Submissions, 4 [12].
[113]Respondent’s Reply Submissions on Costs, 3 [11]. The Claimants agreed that ‘nothing really turns upon [the issue]’ as both parties accept that the ultimate award exceeded that of the 12 April 2019 offer and the Authority’s Particulars of Offer at Transcript of the Trial, 5, lines 18–23.
[114]Respondent’s Reply Submissions on Costs, 3 [13].

It is clear that the Claimants did succeed in achieving an award greater than the offers made by the Authority, albeit only marginally in the context of the Claimants’ sustained claim for (rounded) $49.499 million (or the alternative claim of $39.596 million).

In my view, both the 2019 Pre‑litigation Offers and the 2021 Particulars of Offer are relevant for the purposes of s 91(1)(a). Section 91(1)(a) refers to the amount ‘if any’ offered by the Authority. Unlike s 82 of the LAC Act, it does not explicitly confine its scope to the initial offer of compensation made by the Authority. The LAC Act regime allows the Authority to make subsequent offers and for claimants to apply for an advance on those offers. The 2021 Particulars of Offer are formal offers made in the context of that regime, and as such, are relevant for the purposes of s 91(1)(a). I reiterate my comments in Caradi at [33]. However, I agree the distinction is of no real consequence as both amounts offered fell short of the sum I ultimately awarded.

Although this was not raised by the parties, for completeness, I consider that a Calderbank offer of the kind in this proceeding, issued mere days before the trial, does not constitute an offer for the purposes of s 91(1)(a). However, as rightly put by the parties, it is a relevant consideration for the purposes of assessing unreasonable conduct under s 91(1)(b).

What weight should be given to s 91(1)(a)?

In the Authority’s view, the fact that the Court awarded more compensation than the amount offered by the Authority does not, viewed in isolation, favour an award of costs against the Authority, there being no ‘hard and fast’ rule that a claimant who is awarded more compensation than the amount offered is to be awarded their costs, noting that ‘other considerations may indicate a different result, depending on the circumstances of the particular case’.[115]
[115]Respondent’s Costs Submissions, 4 [10] citing Plunkett (No 2) [2019] VSC 230 at [7] (Richards J).

The Authority emphasised that s 91 does not stipulate that whether a claimant ‘beats’ the amount offered is the only or predominant consideration for the Court. Rather, it is a consideration among several that the Court must have regard to as it considers appropriate in the circumstances.[116] In the Authority’s view, those circumstances include what they say are the ‘tenuous and strained’ nature of the Claimants’ key legal argument, the ‘manifestly inappropriate’ instructions to their valuation expert, and the ‘problematic’ manner in which the Claimants changed their case throughout the proceedings. It submitted that these factors combine to compel the conclusion that the Authority should not be required to pay the Claimants’ costs in the Pre‑Calderbank Period.[117]
[116]Transcript of the Costs Hearing, 107, lines 17–23.
[117]Respondent’s Reply Submissions on Costs, 4 [19]. Per [93] above, the Authority further submitted that, in the Post‑Calderbank Period, these factors, in conjunction with the Claimants’ refusal of the Authority’s Calderbank Offer, justify an award of indemnity costs against the Claimants.

The Authority also submitted that the reasons why the Court awarded more compensation than was offered are also relevant to the weight given to the comparison. In these proceedings, it says the Court rejected all of the Claimants’ evidence and legal arguments. The reason why the Claimants received more than offered in the Authority’s 2021 Particulars of Offer is largely because the Court relied on the evidence of Mr Colson in one proceeding and Mr Keck in the other.[118]
[118]Transcript of the Costs Hearing, 107–108, lines 24–31 and 1–5.

By contrast, the Claimants submitted that, while the factor is not itself decisive, it ‘powerfully supports’ the Claimants being awarded their costs and is ‘perhaps the singular most significant consideration here’, as it demonstrates that but for the litigation, the Claimants would not have received the compensation to which it is statutorily entitled.[119]
[119]Transcript of the Costs Hearing, 8, lines 7–18.

In my view, the fact that the amount awarded by the Court was greater than the amount offered is a positive factor in the Claimants’ favour. While not itself decisive, the Claimants were effectively required to bring the matter to trial in order to obtain the compensation that they were statutorily entitled. However, I consider the comparatively small margin of that amount of relevance in weighing the s 91(1)(a) consideration, given the disparity with the size of the claim and the s 91(1)(b) considerations. These are matters which are also relevant and will be discussed further to follow.

Section 91(1)(b)(i): Claimants’ refusal of the Authority’s Calderbank Offer

Section 91(1)(b)(i) requires the Court to consider, if it considers it appropriate to do so, the extent to which, in the opinion of the Court, the proceedings have arisen from or been affected by unreasonable conduct on the part of the claimant or Authority. This may include an unreasonable rejection of a Calderbank offer.[120]
[120]Love, [152], [155], [168].

As discussed at [32]–[33] above, the Authority sent the Authority’s Calderbank Offer on 28 July 2023 pursuant to which it offered to settle the proceedings for $6.5 million on an ‘all in’ basis.[121] The Claimants did not accept the Authority’s Calderbank Offer and compensation was ultimately assessed at trial to be little over $2.5 million (including interest and amounts already advanced).[122]
[121]Sixth affidavit of Kathryn Howard; Exhibit KAH‑4 at 78–82.
[122]Respondent’s Costs Submissions, 13 [30].

Any such asserted unreasonableness is to be assessed as at the time the offer is made, not with the benefit of hindsight,[123] and taking into account all relevant circumstances, which usually include:[124]
[123]Provan, [25].
[124]Respondent’s Costs Submissions, 14 [31] citing Provan, [26] citing Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435, [25].

(a) the stage of the proceeding at which the offer is received;

(b) the time allowed to the offeree to consider the offer;

(c) the extent of compromise offered;

(d) the offeree’s prospects of success, assessed at the date of the offer;

(e) the clarity with which the terms of the offer were expressed; and

(f) whether the offer foreshadowed an application for indemnity costs in the event of its rejection.

Another factor which the Authority raised was a comparison between the final outcome and the terms of the compromise contained in the Authority’s Calderbank Offer. In doing so, it referred to the decision of Justice Cavanough in Love v Victoria (No 2) [2009] VSC 531 at [30] where his Honour stated that ‘a comparison between the final outcome of the case and the terms of the compromise offered would generally be a significant matter in assessing the “reasonableness” of the offer’.[125]
[125]Respondent’s Costs Submissions, 14 [32].

The Claimants submitted that they did not act unreasonably in rejecting the Authority’s Calderbank Offer. They agreed with the Authority as to the relevant factors to be considered (set out in [122] above),[126] but submitted that these factors favour the Claimant, rather than the Authority.
[126]Claimants’ Costs Submissions, 5–6 [16]–[17].

Each of these matters is addressed in turn.

Stage of the proceedings at which the offer is received

As discussed at [32] above, the Claimants received the Authority’s Calderbank Offer at 9:27am on 28 July 2023, being the Friday before the commencement of the trial on Wednesday, 2 August 2023.

The Claimants submitted that this was extremely late in the proceedings, being three business days before trial and approximately two and three‑quarter years after the proceedings had been commenced.[127] They submitted that this timing — of three business days — was not reasonable.[128] They submitted that the ‘real dynamic’ of this timing was that by the time the offer was made, a great majority of pre‑trial costs had already been incurred, and there was too little time available to Mr Kingston to assess, take advice, and to reflect on what they say is a ‘very significant’ decision, settling what was to the Claimants a $50 million dispute.[129]
[127]Claimants’ Costs Submissions, 5 [17].
[128]Transcript of the Costs Hearing, 51, lines 6–11.
[129]Transcript of the Costs Hearing, 51, lines 19–28.

By contrast, the Authority submitted that the stage of the proceeding in which the offer was given is a factor which favours the Authority, because, being so close to trial, it should have been obvious to the Claimants when they received the Authority’s Calderbank Offer that they had low prospects of success,[130] both on their key legal argument that the Previous Compensation should not be taken into account under s 41(5) of the LAC Act, and on the factual question of what constituted the ‘B’ value under s 41(7) of the LAC Act.[131]
[130]Respondent’s Costs Submissions, 14 [34] referring to Secretary to the Department of Business and Innovation v Murdesk Investments Pty Ltd (No 2) [2012] VSC 586 (‘Murdesk (No 2)’), [38]–[44].
[131]Transcript of the Costs Hearing, 59, lines 16–19.

I accept that the Authority’s Calderbank Offer was made late in the proceedings. However, it is not uncommon for a late offer to be made on the eve of trial as this is when the parties are in the very best position to make an assessment of the strengths and weaknesses of their respective cases. Whist I accept that the great majority of the pre‑trial costs had been incurred by this time, acceptance of the $6.5 million ‘all in’ offer would have represented a higher net return to the Claimants than that which the judgment delivered. This, of course, is an observation made with hindsight.

I accept that the case run by the Claimants was not one which was where the calculation of the quantum was the main determinant of the final quantum in issue. The quantum was affected by the legal question being whether s 41(5) of the LAC Act was engaged and thus what ‘prescribed amount’ was to be deducted from the calculation of compensation. As noted at various points in this decision,[132] I do not think their legal argument was so unreasonable or without foundation, even though it had a somewhat speculative or ambitious character to it, that it was not open to be litigated.
[132]Namely, [162]–[163], [170], [185], [218]–[220] and [305] below.

I also note that on the same day, the Claimants also made the Claimants’ Calderbank Offer in terms which reflected a small discount on their full claim. It would be reasonable to infer that the Claimants had turned their mind to the strengths and weaknesses of their case at this eleventh hour before trial. In view of this course of events, it does appear to me that the Claimants well understood the strengths and weaknesses of their claim on the eve of trial. Having committed to their view of the application of s 41(5) (that being it did not operate to their circumstances), I doubt whether any amount unless very close to the claim would have been accepted by the Claimants at any time in the proceeding, including on the eve of trial.

In summary, the stage of proceeding in which the Authority’s Calderbank Offer was made cuts both ways to a degree. I accept that it came quite late in the day, but I also consider that the Claimants were in a strong position to assess the offer when it was received.

Time allowed to the offeree to consider the offer

As previously noted, the Authority’s Calderbank Offer was open for five days, comprised of three business days and two weekend days.

The Authority submitted that there are two principal reasons why, having regard to the stage of the proceeding at which the offer was received,[133] that time was sufficient, being that the Claimants:

(a) knew the case put against them; and

(b) should be ‘taken’ to have accepted that a period for acceptance of around three to five days was sufficient due to the time allowed under the Claimants’ Calderbank Offer.

[133]Respondent’s Costs Submissions, 15 [35]–[37] citing Braye v Tarnawskyj (No 2) [2019] NSWSC 659, [21].

In addition to the principal points proffered by the Authority, various other circumstances were raised by the parties as being relevant to whether the time allowed under the offer was sufficient.

I deal with each of these points in turn.

Claimants’ knowledge of the case put against them

In support of their first contention, the Authority submitted that the Claimants knew, during the period for acceptance, how the case was put against them. In particular, on the critical issue of whether the Previous Compensation was to be taken into account under s 41(5) of the LAC Act, the Claimants knew that the Authority relied on s 16(b) of the Interpretation of Legislation Act 1984 (Vic) (‘ILA’),[134] the Claimants anticipated the way that case was put in their outline of opening submissions,[135] and they received confirmation of how that case was put when they received the Authority’s outline of opening submissions which were filed on Monday 31 July 2023.[136]
[134]The Authority relied on s 16(b) of the ILA in its particulars of offer, which were provided to the Claimants on 26 March 2021.
[135]Claimants’ Outline of Opening Submissions (filed 31 July 2023 in S ECI 2020 04458, Supreme Court of Victoria) 24–27 [100]–[114]. The Authority notes that this document is dated 30 July 2023.
[136]Outline of Opening Submissions of the Respondent (filed 31 July 2023 in S ECI 2020 04463, Supreme Court of Victoria), 11–16 [31]–[46].

By contrast, the Claimants submitted that Authority’s offer did not explain, in argument or by reference to authority, why s 16(b) of the ILA, and alternatively s 206 of the Planning and Environment Act 1987 (Vic) (‘P&E Act’), should affect the meaning of s 41(5) of the LAC Act. They submitted that the first time the Authority gave any explanation as to those propositions was in its written opening submissions, provided to the Claimants on Monday 31 July 2023, which devoted seven pages to explaining the Authority’s position.[137] They submitted there was no elaboration on the Authority’s position on the s 41(7) issue in the Authority’s Calderbank Offer.[138]
[137]Fourth Affidavit of Mr Callander, 4 [22].
[138]Transcript of the Costs Hearing, 50, lines 18–20.

At the Costs Hearing, the Claimants elaborated further to say that while the Authority’s written submissions were provided on the Monday prior to the Wednesday trial commencement date, and from that point there was an exposition of the Authority’s position on s 16(b), by then, the Claimants had already sent the Claimants’ Calderbank Offer and that did not cover s 41(7) and the ‘B’ value issue.[139]
[139]Transcript of the Costs Hearing, 50–1, lines 24–31 and 1.

The Authority submitted by way of reply at the Costs Hearing that the point regarding s 16 was articulated in the Authority’s 2021 Particulars of Offer, and was self‑evident, such that when the Claimants filed their written submissions on the Monday morning, they had ‘correctly’ and ‘precisely’ articulated the case that the Authority had put against them, meaning that the Claimants understood the case against them while the Authority’s Calderbank Offer was still open.[140]
[140]Transcript of the Costs Hearing, 65–6, lines 21–31, 1–2.

The Authority further submitted that the Claimants’ submission regarding the ‘B’ value was only raised for the first time in the middle of the afternoon on Thursday 27 July 2023, being one day before the Authority’s Calderbank Offer was served, and about two and a half years after the litigation had commenced. It was therefore entirely reasonable for the Authority’s Calderbank Offer not to have dealt with that question.[141]

Should the Claimants be ‘taken’ to have accepted that the period of time allowed was sufficient?

[141]Transcript of the Costs Hearing, 66, lines 7–17.

The second reason given by the Authority that the time allowed was sufficient is that the Claimants’ Calderbank Offer was sent at 7:36pm on 28 July 2023 and expired at 6:00pm on 4 August 2023,[142] and that the Claimants’ restating of the offer was given at 4:36pm on 4 August 2023.[143] On this basis, the Authority submitted by reference to the New South Wales Court of Appeal decision of Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322 (‘Elite’) that the Claimants should be ‘taken’ to have accepted that a period for acceptance of around three to five days was sufficient.[144]
[142]Exhibit KAH‑4 at 83–7.
[143]Exhibit KAH‑4 at 90–2.
[144]Respondent’s Costs Submissions, 15 [37] citing Elite, [149] (Basten JA).

In their reply submissions, the Claimants rejected the proposition that, on the authority of Elite, the Claimants should be ‘taken’ to accept five days as a reasonable period to leave the offer open, given the Authority allowed six days. They submitted that Elite does not lay down a rule that the terms of a counter‑offer dictate whether or not a first offer was reasonable. The Claimants further submitted that Elite occurred in a different context, where the offers were made at least eight months before the trial.[145]
[145]Claimants’ Reply Submissions on Costs, 8 [34].

The Claimants further suggested that both the Authority’s Calderbank Offer and the Claimants’ Calderbank Offer did not leave a sufficient time for acceptance for them to ‘bite’ under the Calderbank principles.[146]

Other circumstances relevant to whether the time allowed under the offer was sufficient

[146]Claimants’ Reply Submissions on Costs, 8 [34].

Both parties made extensive written and oral submissions as to why the time allowed under the Authority’s Calderbank Offer was, or was not, sufficient in the circumstances.

The Claimants submitted that the time allowed was inadequate because the short period did not allow Mr Kingston a proper opportunity to consider and reflect upon the offer given the demands of trial preparation, given the time would inevitably have been fully occupied with trial preparation.[147] Mr Callander states in his fourth affidavit that at the time the Authority’s Calderbank Offer was received, his legal team was extremely busy preparing for trial[148] and due to the pressure of that work, he had limited opportunities to discuss the offer with Mr Kingston and that Mr Kingston did not have the opportunity of discussing the offer directly with counsel.[149]
[147]Claimants’ Costs Submissions, 5 [17(b)].
[148]Fourth Affidavit of Mr Callander, 5 [24].
[149]Fourth Affidavit of Mr Callander, 5 [25].

The Claimants noted the fact that as the offer was a joint one to both Claimants, it could only be accepted by both Claimants, or neither, which they say should also be considered in the Court’s overall assessment of the circumstances.[150]
[150]Transcript of the Costs Hearing, 53–4, lines 29–31 and 1–3.

The Claimants compared the time allowed under the Authority’s Calderbank Offer to the time allowed in Provans, where the Authority’s successful Calderbank offer was open for 28 days.

The Claimants also submitted that the Claimants’ Calderbank Offer would constitute a counter‑offer that amounted to rejection of the Authority’s Calderbank Offer and realistically needed to be sent out on the same day.[151]
[151]Claimants’ Costs Submissions, 5 [17(b)].

In response, the Authority reiterated its submission that by this point in the proceeding the Claimants well understood the way the Authority put its case.[152]
[152]Respondent’s Reply Submissions on Costs, 5 [24], which refers to Respondent’s Costs Submissions, 14 [34] which cites Murdesk (No 2), [38]–[44].

At the Costs Hearing, the Authority referred me to the recent New South Wales Supreme Court decision of SSABR Pty Ltd v AMA Group (No 2) [2024] NSWSC 24 (‘SSABR’), and the cases of Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd (No 2) [2008] NSWCA 85 (‘Kooee’) and Goo v Sim (No 2) [2022] NSWSC 651 cited therein to support its contention that the time an offer to settle is open for acceptance could, depending on the prevailing circumstances and factors affecting the parties themselves, be as little as (or less than) 24 hours. Such relevant factors include the presence of experienced legal counsel and solicitors capable of giving an immediate assessment of the offer and the overall ability of the offeree to understand the offer.[153]
[153]Transcript of the Costs Hearing, 61–3.

The Authority submitted, consistently with the above cases that:

(a) the counsel and lawyers for each of the parties in these proceedings were experienced[154] and well‑placed to provide immediate advice on whether the offers were worthy of consideration and acceptance;[155]
[154]Transcript of the Costs Hearing, 64, lines 5–9.
[155]Transcript of the Costs Hearing, 63, lines 18–24.

(b) the parties served offers on each other on the same day, suggesting that they had formed the view that there was sufficient time before the commencement of the trial for the offers to be considered;[156]

(c) the offers did not ‘come out of the blue’ — they followed the mediation that had taken place just two weeks earlier;[157] and

(d) the individual behind the corporate applicant was an experienced business person who was likely well able to understand the advice he was given and to give prompt instructions.[158]

[156]Transcript of the Costs Hearing, 63, lines 25–9.

[157]Transcript of the Costs Hearing, 63–4, lines 20–31 and 1.

[158]Transcript of the Costs Hearing, 64, lines 2–5.

The Authority emphasised that Mr Kingston is an experienced and sophisticated business person who has legal training and was extremely well represented by three barristers and an experienced solicitor, and had there been any concerns about the terms of the offer, or period for its acceptance, those concerns would have been voiced, but they were not, and in particular, no extension was sought.[159]
[159]Transcript of the Costs Hearing, 59–60, lines 31 and 1–8.

In reply, the Claimants submitted that every case turns on its own facts and SSABR is distinguishable on the basis that ‘the defendants’ offer in that case did not come “out of the blue”’,[160] but rather, the plaintiffs had signalled that they were ready to treat.[161] They submitted that the reverse is true here: the Claimants were busy preparing for trial and had given no such signal.
[160]SSABR, [26].
[161]Transcript of the Costs Hearing, 113–114.

They further submitted that in SSABR, the evidence was that the plaintiffs were physically ‘ensconced’ with their counsel, in a position to take direct advice, while the evidence here is that the Claimants were not ‘ensconced’ with their counsel.

The Claimants submitted that SSABR is useful in the way that it collects dicta about late offers and that those principles are important and relevant here, including that:

(a) it may not be unreasonable to reject a late offer, considering, in particular, that late offers are a significant distraction in trial preparation;[162]

(b) it may not be unreasonable to reject a late offer in a complex case;[163] and

(c) ‘the court should not be ungenerous to the offeree’ in deciding the issue of reasonableness of time allowed to consider the offer.[164]

[162]SSABR, [21] citing Kooee, [20] (Basten JA, with whom Giles and Tobias JJA agreed).

[163]SSABR, [23] citing A v Bird [2020] NSWSC 1680, [58].

[164]SSABR, [23] citing Kooee, [2] (Giles and Tobias JJA).

The Authority submitted that even if it were accepted that the sending of the Claimants’ Calderbank Offer occupied all of Mr Kingston’s time on Friday 28 July 2023, that accounts for only the first day of the period during which the Authority’s Calderbank Offer was open for acceptance.[165] Once the Claimants’ Calderbank Offer had been sent, Mr Kingston had four days (including two business days) to consider the Authority’s Calderbank Offer.
[165]Respondent’s Reply Submissions on Costs, 5 [25].

It further submitted that the material before the Court does not support the conclusion that, in that four‑day period, Mr Kingston did not have sufficient time to consider and reflect upon the Authority’s Calderbank Offer. At the Costs Hearing, it submitted that there is no evidence supporting this point from Mr Kingston himself, and invited the Court to consider that the evidence of Mr Callander in his fourth affidavit is scant and unpersuasive.[166]
[166]Transcript of the Costs Hearing, 60, lines 9–19.

In particular, it was submitted that there is no evidence of what Mr Kingston did or did not do on the remaining four days that the Authority’s Calderbank Offer remained open and that, had it been thought that the offer had been impliedly rejected by the filing of the Claimants’ Calderbank Offer, Mr Callander could have simply sought confirmation that the Authority’s Calderbank Offer remained open until 10:00am on 2 August 2023, which he did not do.[167]
[167]Transcript of the Costs Hearing, 60, lines 20–9.

The Authority submitted that the Court cannot be satisfied, on that material, that Mr Kingston was personally required to attend to trial preparation when he was represented by an experienced solicitor and three members of counsel and he knew (for at least part of the period during which the Authority’s Calderbank Offer was open for acceptance) that he was not going to be called to give evidence.[168]
[168]Respondent’s Reply Submissions on Costs, 5 [25].

The Authority submitted that in any event, the time allowed for acceptance of the Authority’s Calderbank Offer ‘is but one circumstance to be considered and should not by itself lead to any prima facie conclusion’, and if the Court were concerned by the time allowed for acceptance, it is relevant that the Claimants did not request an extension of time.[169]
[169]Respondent’s Costs Submissions, 15 [38] citing Elite, [149] (Basten JA).

I am of the view that the course adopted by the Claimants to reject the Authority’s Calderbank Offer and proceed to trial was one they had committed to having initiated the claim on the terms that they did. It was in effect an ‘all or nothing’ run at the litigation. They accepted the risk that the interpretation of s 41 would require the earlier significant compensation paid to be called into account. Acceptance of the offer made in the Authority’s Calderbank Offer would in effect be to capitulate on the key legal issue and the issue which had the most effect on the quantum of compensation payable. This was a course they chose to pursue, one can infer, being fully informed of the risks given the quality of the legal team advising them.

As previously stated at [131], it is reasonable to infer that at this stage of the proceedings (being at the eleventh hour) the Claimants had turned their mind to the strengths and weaknesses of their case. However, committed to their view of the application of s 41(5) (being it did not operate to their circumstances), I doubt whether any amount offered unless very close to the claim would have been accepted by the Claimants at any time in the proceeding, including on the eve of trial.

Their alternative argument that Mr Haines’ evidence, if accepted, would have delivered a higher compensation figure is acknowledged. However, as discussed in the Compensation Decision at [341]–[348] and [433], I found that Mr Haines’ evidence was tainted by the erroneous instructions given to him which is a factor that is relevant to the adverse manner in which the litigation was run by the Claimants. At the time of the Authority’s Calderbank Offer, the Claimants were aware of the valuation evidence put against their claim and the effect of it, if accepted.

The Claimants submitted that the reliance on two planners added inappropriately to cost, expense and time.[287]
[287]Transcript of the Costs Hearing, 30, lines 27–30.

In summary, the Claimants’ position is that it does not seek a finding of unreasonable conduct (in respect of the Authority), but that there was problematic conduct by the Authority which must be considered in conjunction with the conduct of the Claimants. They submitted that rather than as a criticism of the Authority, it is reflective of the fact that the proceedings were complex, fluid and difficult[288] and it was not a matter entirely the Claimants’ fault that the trial was adjourned.[289]
[288]Transcript of the Costs Hearing, 31, lines 22–31.
[289]Transcript of the Costs Hearing, 32, lines 3–4.

At the Costs Hearing, the Authority submitted in respect of hydrology that the Claimants’ Particulars of Claim attributed a vastly lower value to that part of the land that was affected by flooding, where the rate drops from $5.5 million per hectare to $550,000 per hectare, such that the Claimants’ own Particulars of Claim necessarily put in issue the question of flooding and therefore the relevance of the extent was the land affected by flooding and was developable.[290] That being so, the relevance of hydrological evidence was self‑evident when they filed their Particulars of Claim yet they did not provide any expert report dealing with hydrology until 25 November 2022, almost a year after their evidence was due.[291]
[290]Transcript of the Costs Hearing, 84, lines 15–24.
[291]Transcript of the Costs Hearing, 84, lines 25–9.

The Authority submitted that the Claimants knew that the extent to which the land was contaminated was relevant to its market value and knew that the Authority had raised the question of contamination before these disputes were referred to the Court.[292] The Authority referred to two examples which demonstrated that contamination was ‘in the ring’ and the Claimants should have led evidence about it, the first being the letter from Mr Callander to the Department of Transport, dated 14 September 2020 where Mr Callander acknowledged that the Claimants understood the proposed valuers’ conference could not proceed as the Authority’s valuers sought more instructions concerning contamination.[293] The second was a letter sent by Mr Callander to Mr Malcolm Robinson on 5 October 2020 which referred to the Authority’s contention that part of the land is affected by surface or near surface asbestos contamination.[294]
[292]Transcript of the Costs Hearing, 84–5, lines 29–31 and 1–5.
[293]Exhibit to KAH‑5, 19.
[294]Summarised in the Seventh Affidavit of Ms Howard, 5 [17(c)]; referred to by the Authority at Transcript of the Costs Hearing, 85, lines 17–28.

The Authority also submitted that the Court had listed the proceedings for hearing in February 2023, made orders on 21 September 2022 that the joint expert process was to be completed by 25 November of that year and, by late November of that year, the conclave process was ‘virtually completed’. Notwithstanding this, without leave of the Court, the Claimants then produced nine new expert and lay statements, spanning more than 300 pages of new material which addressed inter alia hydrology, new concept plans and contamination.[295]
[295]Transcript of the Costs Hearing, 87, lines 13–24.

This, the Authority submits, caused the Court to adjourn the February trial and make a new timetable for expert evidence. It submitted that these were ‘deliberate’ and ‘tactical’ decisions by the Claimants to withhold relevant evidence until the Authority had led its evidence.[296]
[296]Transcript of the Costs Hearing, 87–8, lines 25–31 and 1–14.

They also submitted that the Claimants did not maintain a consistent position in relation to the concept plans dealing with hypothetical development of the Acquired Land and went through three further rounds of changing concept plans and sought to rely upon a further concept plan of Mr Haines (including a report that addressed concept plans that the Authority had understood were no longer being relied upon) and two further concept plans dated 5 July 2023.[297] Changing the concept plans led necessarily to a lot of extra costs being incurred by the parties, and the Authority says that was not part of the ordinary course of this kind of litigation and was ‘unreasonable’ and ‘unnatural’ conduct.[298]
[297]Transcript of the Costs Hearing, 88, lines 15–30.
[298]Transcript of the Costs Hearing, 89, lines 5–11.

The Authority rejected the Claimants’ submissions which they say effectively invite the Court to reject the evidence of all of the valuers and find that the ‘B’ value is somewhere in the middle between the Permanent Trustee Land and the Coram Land which, by reason of the various changes in the Claimants’ case, the Authority has been forced to incur significant costs and was forced to pay a modest amount of additional interest occasioned by the adjournment.[299]
[299]Transcript of the Costs Hearing, 89, lines 12–29.

Rather than the case evolving naturally, the Authority submitted their conduct was not a typical or natural example of a case evolving before trial,[300] the Claimants made deliberate tactical or strategic decisions, and those decisions caused delay and increased the Authority’s costs.[301]
[300]Transcript of the Costs Hearing, 90, lines 8–15.
[301]Transcript of the Costs Hearing, 91, lines 1–9.

The Authority emphasised that the fact that the July 2023 agreement was reached does not mean that the Authority cannot take issue with a party’s prior unreasonable conduct in respect of costs.[302]
[302]Transcript of the Costs Hearing, 93, lines 4–23.

In respect of the alternative case put in respect of the ‘B’ value, the Authority submitted that if the Claimants had not compromised or tainted Mr Haines by instructing him to make the assumptions that it did, then did not seek to substantiate them, the Claimants would not have had to make a submission that the Court should reject all of the valuation evidence, and as such, was unreasonable.[303]
[303]Transcript of the Costs Hearing, 94, lines 8–14.

In respect of allegations that the Authority was unsatisfactory in the way it prepared its case, the Authority submitted in reply as set out below.[304]
[304]Transcript of the Costs Hearing, 94–7.

(a) In relation to late filing of expert reports, the critical point is that the Authority had filed all of its evidence and all but one of the conclaves concluded on time in November 2022 which was before the Claimants brought their application to file nine new statements.

(b) In relation to the Authority having filed the evidence of Mr Milner, it was submitted that this evidence was sought in response to the Claimants’ allegations about zoning; it was not for the Authority, responsible for public money, to disregard his evidence. This was not inappropriate conduct which affected the proceeding as the Authority never amended its 2021 Particulars of Offer, to lower its offer to reflect Mr Milner’s evidence.

(c) In respect of the Authority not obtaining evidence from Melbourne Water sooner, Melbourne Water is not a party to this proceeding. It is a separate legal entity. The Authority did obtain evidence from an independent expert about what Melbourne Water would do (and got that evidence in 2022) and made repeated efforts to get that evidence directly from Melbourne Water. The material was handed over to the Claimants on the very day that it was received.

(d) In respect of the adjournment being a trivial net loss such that the Claimants’ should not be required to pay the Authority’s costs of the whole proceeding, the Authority submits that the focus is not on interest but the substantial additional costs incurred because of the Claimants’ decision to rely on nine new statements of evidence, just two months before trial, listed for February 2023. This caused legal costs to be thrown away and duplicated.

In reply, the Claimants reiterated that the 2021 Particulars of Offer did not put contamination or hydrology issues ‘into the ring’.[305] The Claimants submitted that Mr Callander did set out matters known to the Claimants demonstrating no contamination issues and it would be ‘retrograde’ and ‘untenable’ to put evidence in every discipline regardless of whether it was in issue, just to ‘cover it off.’[306]
[305]Transcript of the Costs Hearing, 118, lines 17–28.
[306]Transcript of the Costs Hearing, 118–119, lines 29–31 and 1–15.

The Claimants referred to the Court’s orders of 21 September 2022 which recorded in the ‘other matters’ the expressed intention of the Claimants to seek to put on such reports and made provision in respect of that occurring.[307]
[307]Transcript of the Costs Hearing, 119, lines 16–24.

The Claimants rejected the Authority’s submission that the Claimants had put hydrology in issue with its own evidence served before December 2021.[308]
[308]Transcript of the Costs Hearing, 120, lines 4–21.

In respect of the Authority’s retention of two experts, the Claimants referred to the full Federal Court decision in Novartis v Pharmacor [2022] FCAFC 58 (‘Novartis’) at

[25]–[30], where Justice Beach stated that a convincing reason would be needed for a second expert in one discipline to able to be relied upon. They submitted that if that were to be done, and such reason were to be shown, then before filing the reports, the reason should be established by argument before the court if not consented between the parties. They submitted that that dictum was not embracing a circumstance such as the present, where the second expert was not just duplicative, but fundamentally inconsistent.[309]
[309]Transcript of the Costs Hearing, 121, lines 4–16.

By way of final reply submissions, the Authority argued that Novartis was not a case involving this jurisdiction where it is not unusual for more than one expert in the same discipline to be called.[310]
[310]Transcript of the Costs Hearing, 122, lines 26–31.

In the preparation of the expert and lay evidence in this matter, both sides have taken steps which have made the evidence more complex and tended to extend the time to get this matter to trial. The failure to meet Court set timeframes is to be avoided and not to do so is contrary to the expectations of practitioners under the Civil Procedure Act.

In this regard, the 12 month delay by the Claimants in addressing hydrology and contamination evidence is regrettable. The filing of nine new statements is not a positive and efficient manner of conducting litigation. I am also concerned by the multiple concept plans which were prepared unnecessarily.

As against this, there were steps taken by the Authority which did not assist in bringing the matter efficiently to trial. In particular, the addition of a second town planning expert was also a regrettable step.

Whilst I am satisfied that the management of the proceeding by the Claimants was not exemplary, I have formed the view that this is a factor which cuts both ways to a degree. In combination with the change of instructions to Mr Haines and the decision not to call Mr Kingston, the management of the issues and evidence does amount to unreasonable conduct on the part of the Claimants. That said, there is also a degree of culpability by the Authority, as outlined above.

The delay which has occasioned an additional interest cost to the Authority is a significant factor, but is not one which would result in an overall costs award against the Claimants in all the circumstances. I have given it some weight in determining the overall costs allocation.

Section 91(1)(b)(iii): Excessive claim

Section 91(1)(b)(iii) requires the Court to take into consideration, if it considers is appropriate to do so, the extent to which, in the opinion of the Court, the proceedings have arisen from, or been affected by, an excessive claim by the claimant.

The Authority submitted that this factor overlaps, to a large extent, with whether the proceedings arose from, or were affected by, the unreasonable conduct of the Claimants.[311] It submitted that just as it was unreasonable for the Claimants to have sought to deny the relevance of the Previous Compensation and to have instructed Mr Haines as they did, the Claimants’ claims were ‘grossly excessive’ by reason of these matters.
[311]Respondent’s Costs Submissions, 12 [23].

The Authority reiterated that the Claimants sought compensation in excess of $52.7 million (plus interest and costs) but they were awarded a small fraction of that amount in compensation.[312] They submitted that the ‘massive’ discrepancy between what the Claimants sought, and what they were awarded, is attributable to their strategic choices of what they described as ‘taking a punt’ on an obviously unattractive legal argument that would have led to significant overcompensation, and briefing their expert witness in a ‘skewed’ and ‘inappropriate’ fashion.
[312]Respondent’s Costs Submissions, 13 [24].

The Authority submitted that these choices are aptly described as ‘unreasonable or worthy of criticism’ and as such, the Claimants’ claim — which was based on those choices — is rightly characterised as ‘excessive’.[313] The Authority submitted that the Claimants have consistently sought compensation in excess of $50 million plus interest and costs, which ‘is, and has always been’, excessive.[314]
[313]Respondent’s Costs Submissions, 13 [25].
[314]Respondent’s Reply Submissions on Costs, 4 [15].

The Authority further submitted that the difference between the compensation awarded by the Court and the compensation sought by the Claimants was so great that there was practically no room to reach a negotiated outcome. Therefore, it submitted that it was the Claimants’ unreasonable conduct and the excessive claim that caused the parties to incur millions of dollars of costs in these proceedings.[315]
[315]Respondent’s Reply Submissions on Costs, 4 [17].

The Claimants rejected the Authority’s submission that the Claimants’ claim was ‘excessive’ because they only recovered (rounded) $2.4 million (plus interest) rather than $52.7 million as claimed.[316] The Claimants submitted that excessiveness does not arise only because a large claim fails, but requires ‘blameworthy’ conduct of some sort.[317]
[316]Claimants’ Reply Submissions on Costs, 6 [26].
[317]Claimants’ Reply Submissions on Costs, 6 [27] citing Caradi, [40]–[42].

While acknowledging that the dollar difference between the outcome and the position for which the Claimants were contending was ‘enormous’,[318] the Claimants submitted that they cannot be criticised for seeking $52.7 million upon issue, given they had valuation evidence supporting the factual claim and an ‘arguable’ legal case that s 41(5) of the LAC Act did not apply.[319] They submitted that to decide otherwise would have a ‘chilling’ effect on any claimants seeking to pursue an arguable case, supported by evidence, in the face of a compulsory dispossession by the State.[320]
[318]Transcript of the Costs Hearing, 8, lines 22–5.
[319]Transcript of the Costs Hearing, 8, lines 25–30.
[320]Claimants’ Reply Submissions on Costs, 6–7 [28].

They submitted that the fact that the amounts offered were deficient provides extremely significant context as the Claimants were forced to bring proceedings to obtain the compensation to which they were statutorily entitled.[321]
[321]Transcript of the Costs Hearing, 10, lines 1–8.

The Claimants referred to the Joint Memorandum of Counsel to say that there was an agreement of the parties that that value was $34 million dollars and that the ‘C’ value, while a strong result for the Claimants, nevertheless represented a compromise by the Claimants as against the primary scenario for which they would be contending at trial of $39.865 million.[322] This, they say, is the antithesis of conducting the proceedings unreasonably.[323]
[322]Transcript of the Costs Hearing, 14, 7–30.
[323]Transcript of the Costs Hearing, lines 17–18.

The Claimants also submitted that to use the $52.7 million claim is artificial as a comparator because, by the time of the trial, the claim had been significantly reduced.[324]
[324]Claimants’ Reply Submissions on Costs, 7 [29].

The Claimants further submitted that:[325]
[325]Claimants’ Reply Submissions on Costs, 7 [30]–[32].

(a) the proper characterisation of the proceedings is that by the time of trial, the Authority accepted that, subject to the application of s 41(5), which turned on a number of complex legal issues, the Claimants were entitled to $34 million in compensation plus interest;

(b) in any event, the question under s 91(1)(b) is the degree to which any excessive claim has ‘affected’ the proceedings. They submitted that the reality is that, given the factual and legal complexity of this acquisition, there was always going to be significant disputation between the parties, about the ‘B’ and ‘C’ values, and about the application of the statutory formula, leading to a lengthy trial; and

(c) it is important to appreciate that, right up until July 2023, the Authority was pursuing a best case which would have assessed the ‘C’ value as $2.3 million before applying a reduction (of about 95%) for the formula, so leaving the Claimants with perhaps $115,000 market value compensation (plus expenses), as the only compensation for the compulsory acquisition of 8.09 hectares of suburban land. In such circumstances, significant litigation was all the more likely to occur, even had the Claimants’ own claims been less than they were.

The Claimants submitted that the reason for the large gap in recovery is that neither of the two principal legal arguments for the Claimants prevailed which is not within what the legislation has intended by its use of the phrase ‘excessive’.[326]
[326]Transcript of the Costs Hearing, 37, lines 21–26.

The Claimants submitted that they pressed the $52.7 million when this was the figure opined by Mr Haines, and that when he reduced his valuation of figures upon further input material and reflection, then the stance of the Claimants reduced accordingly.[327]
[327]Transcript of the Costs Hearing, 37–8, lines 27–31 and 1–9 in reference to the Respondent’s Reply Submissions on Costs, [15].

The Claimants also submitted that ‘it was the insufficiency of the [Authority’s] original offer which caused the parties to incur costs in the litigation’.[328] The Authority rejected this submission on the basis that the litigation costs arose from the Claimants’ unreasonable conduct and excessive claim.[329]
[328]Claimants’ Costs Submissions, 4 [10].
[329]Respondent’s Reply Submissions on Costs, 3 [14].

The Authority submitted in reply that the Claimants’ conduct was ‘blameworthy’, a characterisation the Claimants argued was required.[330] In essence, they submitted that all aspects of the Claimants’ conduct in the proceeding which they contend are unreasonable, are enmeshed with and causative of the Claimants’ ‘excessive’ claim.
[330]See [292] above.

They argued that if the Claimants had not sought to be overcompensated or ‘double dipping’, these proceedings would likely have settled.[331]
[331]Transcript of the Costs Hearing, 103–104, lines 31 and 1–6.

The Claimants rejected the implication that they sought to be ‘double dipping’, emphasising that the previous payments were not made to Mr Kingston and Jomaring, so there was not double‑dipping in the sense of overcompensation to the same claimant individuals. They submitted that, as because s 41(5) of the LAC Act says in its own terms what it does, unless s 16(b) of the ILA operates, then the legal reality is that the statute would not have prevented full compensation at the time of acquisition.[332]
[332]Transcript of the Costs Hearing, 116, lines 19–30.

The claim in excess of $50 million as compared to the Court’s assessment of the claim superficially attracts a conclusion that the claim was manifestly excessive. Such a position is not uncommon in compulsory acquisition claims where there is a significant difference of opinion as to valuation or where, such as here a threshold legal question dramatically alters the bounds of the quantum of the claim.

Again, I reiterate my comments made at [130]–[131], [162]–[163], [170], [185] and [218]–[220] above. I am of the view that the threshold legal question was one which was open to be argued by the Claimants and the quantum of the claim substantially rode on the back of that question. It was a risk they were prepared to take and in my view, whilst it may be properly categorised as being somewhat speculative or ambitious, it was not so lacking in merit to be considered unreasonable. I do not consider in these circumstances that the claim was unreasonable.

However, the claim for solatium and for disturbance, abandoned as they were, are indicative of being excessive and unreasonable and were not substantiated. The cost of these parts of the claim should not lie at the feet of the Authority. Whilst independently these issues are a minor component of the claim overall, they remain relevant to the reasonableness of conduct considerations in s 91(10)(b)(i) rather than s 91(1)(b)(iii).

Certification for three counsel

The Claimants seek certification from the Court that the case was appropriate for three counsel. The Court has the power to make such a certification under s 91 of the LAC Act as has been done in previous compulsory acquisition decisions.[333]
[333]See Roads Corporation v Love [2010] VSC 581, [110]; Roads Corporation v Love (No 2) [2010] VSC 154; 31 VR 551 [62].

In support of their request, the Claimants submitted that the proceedings were complex in nature, wide in scope, involving numerous legal and valuation issues and extensive documentary and factual material.[334] Mr Callander stated in his fourth affidavit that, in his opinion and based on 54 years of experience as a solicitor, it was appropriate to engage three counsel, given the factual and legal complexity of the proceedings, the amounts in question, the valuation and other expert issues, and the large volume of documentary material and evidence over numerous specialised fields.[335] The Claimants also submitted that they generally only had one individual solicitor working on the proceedings, thus more reliance fell on counsel.[336] They also noted that the Authority retained three counsel for the proceedings.[337]
[334]Claimants’ Costs Submissions, 6 [19].
[335]Fourth Affidavit of Mr Callander, 2–3 [11].
[336]Claimants’ Costs Submissions, 6 [19].
[337]Claimants’ Costs Submissions, 6 [19].

The Authority submitted in reply that if the Court makes any award of costs in favour of the Claimants, the Authority would not resist such certification.[338] However, if the Court makes an award of costs in favour of the Authority, the Authority seeks certification for three counsel.[339]
[338]Respondent’s Reply Submissions on Costs, 7 [35].
[339]Respondent’s Reply Submissions on Costs, 7 [35].

I am of the view that the matter was one which was appropriate for three counsel (on both sides) to be retained. The claim overall was a complex one, made more complex by the forensic decisions made during the course of the proceeding. However, the conduct of the trial itself was run efficiently and this was done by utilising the respective counsel to deal with various parts of the claims and the evidence in an efficient manner. I make this observation as to the appropriateness of three counsel for the assistance of the ultimate costs assessment or the Cost Court, if necessary.

CONCLUSION

As illustrated by the foregoing discussion, the submissions made by the parties in respect of the costs applications were extensive and detailed.

There is no doubt that this matter was complex. The proceeding was, however, made more extensive, complex and costly by some of the forensic decisions made during pre‑trial preparation and during the trial. The production of some of the evidence, the change of position on hydrology/contamination and planning evidence added delay, duplication and increased interest liability. A portion of the conduct which added to costs and delay is fairly sheeted home to the Claimants, though not entirely. The instructions given to Mr Haines and the role of Mr Kingston’s evidence added to costs.

As canvassed in [94]–[104] of this decision, the principles which apply to costs in a compulsory acquisition claim are set out in s 91 of the LAC Act.[340] The usual civil claims cost rule that ‘costs follow the event’ is not the starting point here. The claim is made under the LAC Act for compensation for compulsory acquisition of private land. The parties agreed, as is appropriate, that in a claim for compulsory acquisition there is a ‘tilt’ in favour of a dispossessed landowner. This ‘tilt’ is, of course, subject to the factors set out in s 91.
[340]In addition to the Civil Procedure Act 2010 (Vic).

Of particular relevance and weight, I have considered the following matters to be persuasive in determining that the Claimants should recover some, but not all, of their costs on a standard basis. I consider the proceedings have been adversely affected by a number of matters properly laid at the feet of the Claimants and, accordingly, a reduction to their costs is proper in all of the circumstances. I do not consider that the circumstances however, are such that the proper exercise of discretion would lead to a reversal of the costs liability.

Taking into account s 91(1)(a), I consider it a positive factor in favour of the Claimants that the amount of compensation awarded to the Claimants was more (but not substantially more) than the offers made by the authority. However, as indicated at [119] above, the comparatively small margin of that amount leads me to not place too much weight on this factor overall.

The Claimants were justified in bringing the claim in monetary terms and pursuing it.

However, when consideration is given to the conduct of the Claimants in accordance with s 91(1)(b)(i) and (iii), I consider the following matters to amount to unreasonable conduct and conduct which adversely affected the incurring of costs and/or delay:

(a) the preparation of lengthy evidence of Mr Kingson, then not calling him. This evidence required a great deal of work to be undertaken by the Authority which was thrown away and reduced any basis of claims made for solatium and disturbance at the last moment;[341]
[341]See [251]–[253] above.

(b) late delivery of hydrology evidence;[342]
[342]See [282]–[286] above.

(c) the addition of nine new witness statements late in the pre‑trial preparation;[343]
[343]See [282]–[286] above.

(d) the manner of instruction given to Mr Haines and then the withdrawal of instructions;[344]

(e) multiple planning scenarios prepared unnecessarily;[345] and

(f) the Claimants’ abandonment of their claims for solatium and disturbance.[346]

[344]See [234] above.

[345]See [283] above.

[346]See [306] above.

I also consider the Authority’s Calderbank Offer is a matter relevant to s 91(1)(b)(i). In summary, as discussed at [170]–[172] above, I consider that the Authority’s Calderbank Offer was clearly a more generous offer than the award of the Court. However, the numerical figure is not the only relevant factor in this consideration: my analysis of this is dealt with at [129]–[132] (stage of the proceeding), [162]–[165] (time allowed to offeree), [169]–[172] (extent of compromise), and [185]–[187] (offeree’s prospects of success).

As noted, given the effect of the construction question on the dollar figure for compensation, it is difficult to draw the conclusion that the construction question, which was hotly contested, was not pivotal in this case. The Claimants had an alternative position which based on Mr Haines’ evidence, if accepted would have delivered a higher valuation outcome. As I determined in the Compensation Decision, I ultimately did not accept Mr Haines’ evidence as I found it was not only influenced by the instructions he had been given, but also not soundly based on contemporaneous comparative sales.[347]
[347]See Compensation Decision, [431]–[437].

The case brought by the Claimants had a significant element of speculation or ambition to it. That said, the question of the interpretation and application where compensation had been previously paid had not been subject of judicial interpretation. The stakes in terms of the possible best outcome for the Claimants was lucrative. It may well have been as a consequence of that prize that the costs said to be $1.7 million pre‑trial were incurred. As such, as discussed at [130]–[131], [162]–[163], [170], [185], [218]–[220] and [305], I am of the view that the Claimants’ position on the interpretation question, albeit with a degree of ambition and speculation, was sufficiently open to the Claimants such that it was not unreasonable in the circumstances to have made it. As such, their claim was not excessive to the extent it was informed by that position. I do not feel the same in respect of the claims for solatium and disturbance for the reasons set out at [306] above, however, those matters were a relatively minor component of the claim overall.

Lastly, as mentioned at [282] above, I do consider that both sides took steps in these proceedings which have made evidence more complex and tended to extend the time to get this matter to trial. The failure to meet Court set timeframes is to be avoided and not to do so is contrary to the expectations of practitioners under the Civil Procedure Act. I have considered this factor in the overall allocation of costs.

In light of the foregoing, the Authority should be ordered to pay a reduced amount of the Claimants’ costs on a standard basis to take into account the matters identified at [317] above as adverse to the proceeding, determined to be 50% of the Claimants’ costs calculated on a standard basis.

I am satisfied that taking into account the matters set out in s 91 in particular, the amount recovered, the uniqueness and complexity of the legal argument, the changes to the Claimants’ position, the change to instructions and the change in position on Mr Kingston’s evidence, the competing Calderbank offers and the proper exercise of discretion as to costs supports a proportion of the Claimants’ costs to be paid by the Authority. I have made the reduction to 50% of the standard costs to represent the deficiencies in the Claimants’ conduct and its effect on the proceeding and to draw a fair balance in the strengths and weaknesses of the respective costs claims.

ORDERS

Accordingly, I will make orders that the Authority pay to the Claimants an amount representing 50% of the Claimants’ costs calculated on a standard basis.

As noted at [310] of this decision, my orders will reflect that I am of the view that the matter was one which was appropriate for three counsel (on both sides) to be retained for the assistance of the ultimate costs assessment or the Cost Court, if necessary.

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[2024] VSC 231

10 May 2024