Linke v Linke (No 2) - [2018] VSC 815

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY & PROBATE LIST

S CI 2016 03041

GRAEME DAVID LINKE, AGNES MARIE BAENSCH, PETER MICHAEL LINKE and ANDREW CORNISH	Plaintiffs
v
VICTOR HAROLD LINKE, JUDITH ANN LINKE, COLIN MICHAEL LINKE, MARIA GRACE LINKE, GLENIS WALTER LINKE and IAN DAVID LINKE	Defendants

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JUDGE:	Justice Keogh
WHERE HELD:	Melbourne
DATE OF HEARING:	5 December 2018
DATE OF JUDGMENT:	21 December 2018
CASE MAY BE CITED AS:	Linke & Ors v Linke & Ors (No 2)
MEDIUM NEUTRAL CITATION:	[2018] VSC 815

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COSTS – Whether two sets of costs should be ordered where defendants were separately represented – No conflict between defendants – Unreasonable to award more than one set of costs – Supreme Court Act 1986 (Vic) s 24 – Supreme Court (General Civil Procedure) Rules 2015 (Vic) O 63 – Oshlack v Richmond River Council (1998) 193 CLR 72 – Statham v Shepherd & Anor (No 2) (1974) FLR 244 – HP Mercantile Pty Ltd v Harnett [2017] NSWCA 79 (18 April 2017) – Apportionment of costs – Defendants were entitled to raise all reasonable defences – No costs order for failed defences – Chen v Chan [2009] VSCA 233 (8 October 2009) – Australian Conservation Foundation v Forestry Commission (1988) 81 ALR 166 – Griffith v Australian Broadcasting Corporation (No 2) [2011] NSWCA 145 (8 June 2011).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	T Mitchell	Stephen Peter Byrne
For the First and Second Defendants	No appearance
For the Third and Fourth Defendants	J Rizzi	Dwyer Robinson Pty Ltd
For the Fifth and Sixth Defendants	No appearance

HIS HONOUR:

In this proceeding the plaintiffs claimed a farm in Western Victoria known as Abbey Hills was held on trust for them by the first, second, third and fourth defendants (Victor, Judith, Colin and Maria). On 4 September 2018 I delivered a judgment in favour of the defendants.[1] On 12 November I dismissed the plaintiffs’ claims and ordered that they pay Victor and Judith’s costs on a standard basis.
[1]Linke & Ors v Linke & Ors [2018] VSC 505 (4 September 2018).

The plaintiffs and Colin and Maria are in dispute in relation to costs orders.

The plaintiffs seek orders that:

(a) Colin and Maria pay 15% of the plaintiffs’ costs of the proceeding; and

(b) There otherwise be no orders as to costs.

Colin and Maria seek an order that the plaintiffs pay their costs of the proceeding on a standard basis.

Background

I will not repeat the relevant background set out in the judgment dismissing the plaintiffs’ claim. In summary, Johannes Linke died in 1962 leaving his estate, which included Abbey Hills, to his five children, Leonard, who died in 1965 before the estate was distributed, Victor and the first, second and third plaintiffs, Peter, Agnes and Graeme. The fourth plaintiff, Andrew, is Leonard’s son. In 1973 Johannes’ estate was wound up and Abbey Hills was transferred to Victor and his wife…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Linke v Linke (No 2)

Details

AGLC: Linke v Linke (No 2) [2018] VSC 815
Case: [2018] VSC 815
Decision Date: 21 December 2018

CaseChat Overview and Summary

The case of Linke v Linke (No 2) arose in the Supreme Court of Victoria. The plaintiff, Linke, sued two defendants, who were jointly and severally liable, over a dispute related to property. The plaintiff sought a declaration regarding the property and associated costs. The defendants were separately represented throughout the proceedings, leading to a dispute over the allocation of costs.

The primary legal issue the court had to address was whether two sets of costs should be awarded when the defendants were separately represented and there was no conflict between them. The court had to consider the relevant statutory provisions, including sections of the Supreme Court Act 1986 (Vic) and the Supreme Court (General Civil Procedure) Rules 2015 (Vic). The court also referenced several precedents to guide its decision, such as Oshlack v Richmond River Council, Statham v Shepherd & Anor (No 2), HP Mercantile Pty Ltd v Harnett, Chen v Chan, Australian Conservation Foundation v Forestry Commission, and Griffith v Australian Broadcasting Corporation (No 2).

The court concluded that it was unreasonable to award two sets of costs to separately represented defendants who were not in conflict. The court found that the defendants were entitled to raise all reasonable defences and that the failure of some of those defences did not warrant an order for costs. The court noted that apportionment of costs would not be appropriate given the circumstances. Therefore, the court ordered that only one set of costs should be awarded, aligning with the reasoning in Chen v Chan and Australian Conservation Foundation v Forestry Commission. The court also highlighted that a costs order should not be made for failed defences, consistent with Griffith v Australian Broadcasting Corporation (No 2). The final order was for the defendants to pay a single set of costs to the plaintiff.

Orders