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Lahanis v Livesay (Costs)

Lahanis v Livesay (Costs)

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Case Copied 19 February 2021 48 min read

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PROPERTY LIST

S ECI 2020 01011

IN THE MATTER of an application pursuant to s 84 of the Property Law Act 1958 for the modification of a restrictive covenant

AND

IN THE MATTER of an application for the modification of the restriction arising under the covenant in transfer of land registered no. 2245509 dated 5 August 1949 affecting the land at 22 Derrick Street, Lalor being lot 192 on plan of subdivision no. 20067 and being the land in folio of the Register volume 7684 folio 183.

BETWEEN

CON SOFOKLIS LAHANIS	Plaintiff
v
ROBYN LIVESAY & ORS (according to the attached Schedule)	Defendants

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JUDGE:	Derham AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	By written submissions finalising on 15 February 2021
DATE OF JUDGMENT:	19 February 2021
CASE MAY BE CITED AS:	Lahanis v Livesay & Ors (Costs)
MEDIUM NEUTRAL CITATION:	[2021] VSC 65

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COSTS – Application for modification of restrictive covenant – Application granted – Special factors relevant to costs in applications for the discharge or modification of restrictive covenants – Calderbank offer made by plaintiff – Applicable legal principles – Whether unreasonable of defendants to reject Calderbank offer – Whether the need that the Court exercise jurisdiction under s 84 of the Property Law Act 1958 affects the availability or utility of Calderbank offers – Re Withers [1970] VR 319; Wong v McConville & Ors (No. 2) [2014] VSC 282; Jiang v Monaygon Pty Ltd (Costs) [2017] VSC 655; Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435; Thomopoulos v Faulks (No 2) [2006] VSC 286, Commissioner of State Revenue v Challenger Listed Investments Ltd (No 2) [2011] VSCA 398; and Charan v Nationwide News Pty Ltd [2019] VSCA 36, referred to.

COSTS – Certifying Counsel’s fees – Under what power does the Court certify Counsels’ fees – Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 63.34(3); Civil Procedure Act 2010 (Vic), s 65C; Supreme Court Scale of Costs, item 19(4); Jenkins v GJ Coles & Co Limited, (1993) 1 VR 155; The Mayor Councillors and Citizens of the City of Warrnambool v Tabone, (Supreme Court of Victoria Appeal Division, Marks J, 25 August 1992); Foudoulis v O’Donnell (No 2) [2020] VSC 343; Lenehan v Powercor Australia Ltd [2020] VSC 82; Gurappaji v Phillips [2021] VSC 11 referred to.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr W Rimmer	Aughtersons Solicitors
For the Defendants	Mr P Barton	Bevan-Rhys James

TABLE OF CONTENTS

Introduction and summary of conclusions................................................................................... 1

Applicable Law................................................................................................................................... 2

Costs in restrictive covenant applications................................................................................. 2
Calderbank offers.......................................................................................................................... 3

Plaintiff’s Submissions..................................................................................................................... 7

Defendants’ submissions............................................................................................................... 10

Plaintiff’s reply submission........................................................................................................... 12

Consideration.................................................................................................................................... 14

Certifying Counsel’s fees............................................................................................................... 22

Conclusion......................................................................................................................................... 24

HIS HONOUR:

Introduction and summary of conclusions

On 4 February 2021, I delivered judgment in this proceeding (Lahanis v Livesay & Ors [2021] VSC 29) granting the plaintiff’s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] VSC 65
Decision Date: 19 February 2021

CaseChat Overview and Summary

The parties involved in the case were Lahanis, the plaintiff, and Livesay, the defendant. The dispute was an application for modification of a restrictive covenant, with the plaintiff seeking to modify the covenant and the defendant opposing the modification. The case was heard in the Supreme Court of Victoria. The legal issues that the court had to decide were whether it was unreasonable for the defendants to reject the plaintiff's Calderbank offer, and whether the need for the court to exercise its jurisdiction under section 84 of the Property Law Act 1958 affected the availability or utility of Calderbank offers.

The court found that it was unreasonable for the defendants to reject the plaintiff's Calderbank offer. The court noted that Calderbank offers are an important tool in encouraging parties to settle disputes and avoid unnecessary litigation. The court also found that the need for the court to exercise its jurisdiction under section 84 of the Property Law Act 1958 did not affect the availability or utility of Calderbank offers. The court relied on several cases to support its decision, including Re Withers [1970] VR 319, Wong v McConville & Ors (No. 2) [2014] VSC 282, and Charan v Nationwide News Pty Ltd [2019] VSCA 36.

In addition to the legal issues discussed above, the court also had to decide on the certification of counsel's fees. The court noted that it had the power to certify counsel's fees under rule 63.34(3) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) and section 65C of the Civil Procedure Act 2010 (Vic). The court also noted that it could rely on the Supreme Court Scale of Costs, item 19(4), to determine the appropriate fees. The court referred to several cases to support its decision on the certification of counsel's fees, including Jenkins v GJ Coles & Co Limited (1993) 1 VR 155, Foudoulis v O’Donnell (No 2) [2020] VSC 343, and Lenehan v Powercor Australia Ltd [2020] VSC 82.

The court ultimately granted the plaintiff's application for modification of the restrictive covenant and ordered the defendants to pay the plaintiff's costs of the application. The court also certified the plaintiff's counsel's fees, which were determined to be reasonable and necessary. The court's decision highlights the importance of Calderbank offers in encouraging parties to settle disputes and avoid unnecessary litigation. It also underscores the court's power to certify counsel's fees and the factors that the court takes into account when making such a decision.

Orders