Lord Buddha v Harpur (No 2)

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IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION

No. 7843 of 2008

BETWEEN
LORD BUDDHA PTY LTD (ACN 117 265 988) Plaintiff
v
PAUL HARPUR Defendant
AND BETWEEN
PAUL HARPUR Plaintiff by counterclaim
- and -
LORD BUDDHA PTY LTD (ACN 117 265 988) and Firstnamed defendant by counterclaim
FORVALE PTY LTD (ACN 072 984 019) Secondnamed defendant by counterclaim

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JUDGE:

Robson J

WHERE HELD:

Melbourne

DATE OF HEARING:

24, 31 August 2011

DATE OF JUDGMENT:

11 November 2011

CASE MAY BE CITED AS:

Lord Buddha v Harpur (No 2)

MEDIUM NEUTRAL CITATION:

[2011] VSC 568

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COSTS – Interest - Date from which interest should be calculated on counterclaim – Interest to be calculated from date of originating motion rather than issue of counterclaim – s 60(1) of the Supreme Court Act 1986

COSTS – Apportionment of costs – Relevant principles – Apportionment of costs appropriate where failure to make out claim – r 63.04(1) Supreme Court (General Civil Procedure) Rules 2005

COSTS – Bullock and Sanderson orders – General principles – Bullock or Sanderson order refused

COSTS – Calderbank offer – General principles – Calderbank offer not reasonable – Offer made too early in the proceeding –  Offer did not constitute a compromise - Indemnity costs not awarded

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APPEARANCES:

Counsel Solicitors
For the plaintiff on the claim and the first defendant on the cross claim Mr M Lapirow
Mr J J Oswald-Jacobs
O’Donnell Salzano Lawyers
For the defendant on the claim and plaintiff on the cross claim Ms S Marks SC
Mr M Albert
Mills Oakley Lawyers
For the second defendant on cross claim Mr P Little and
Mr D Manly
Michael Benjamin & Associates

HIS HONOUR:

Introduction and summary

  1. On 9 August 2011, I delivered judgment in this proceeding, finding for Mr Harpur on Lord Buddha’s claim against him; finding for Mr Harpur on his counterclaim against Lord Buddha; and finding for Forvale on Mr Harpur’s counterclaim against it. I ordered that, pursuant to s 82 Trade Practices Act 1974 and s 159 Fair Trading Act 1999 (Vic), Lord Buddha pay Mr Harpur the sum of $425,000 and damages in the nature of interest.

  1. On 24 and 31 August 2011, submissions were made by the parties on costs and interest.  As set out below, I have determined the appropriate costs and interest orders as follows:

1.        Lord Buddha pay Mr Harpur the sum of $134,367.25 in the nature of interest as at the date of judgment of 9 August 2011;

2.        Forvale pay the costs of the day in relation to hearing of the Calderbank offer on 31 August 2011;

3.        Mr Harpur pay the costs of the 12 April 2011 adjournment;

4.        Lord Buddha pay 75 per cent of Mr Harpur’s costs of the proceeding, including any reserved costs, but excluding those of the 12 April 2011 adjournment and the costs of the day of 31 August 2011, on a party/party basis up to and including 15 September…

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Details
Case
[2011] VSC 568
Decision Date

CaseChat Overview and Summary

In this matter, the plaintiff, Lord Buddha, brought a claim against the defendant, Harpur, in the Supreme Court of Victoria. The dispute centred around costs incurred in the proceedings, including interest on the counterclaim and the apportionment of costs. The case was heard by Justice Max Jacobson.

The court had to determine the appropriate date from which interest should be calculated on the counterclaim, whether apportionment of costs was appropriate in light of the plaintiff's failure to make out their claim, and whether a Bullock or Sanderson order should be granted. Additionally, the court needed to assess the reasonableness of a Calderbank offer made by the defendant and the appropriateness of awarding indemnity costs.

Justice Jacobson held that interest on the counterclaim should be calculated from the date of the originating motion rather than the date of the counterclaim, as per section 60(1) of the Supreme Court Act 1986. The court found that apportionment of costs was appropriate under rule 63.04(1) of the Supreme Court (General Civil Procedure) Rules 2005, given the plaintiff's failure to succeed in their claim. A Bullock or Sanderson order was refused, as the court found no justification for such an order. The Calderbank offer was deemed unreasonable because it was made too early in the proceedings and did not constitute a compromise. Consequently, indemnity costs were not awarded.

In conclusion, the court determined that interest on the counterclaim should be calculated from the date of the originating motion, that costs should be apportioned due to the plaintiff's failure to make out their claim, and that no Bullock or Sanderson order was warranted. The Calderbank offer was found to be unreasonable, and indemnity costs were not awarded.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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