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Lord Buddha v Harpur (No 2)

Lord Buddha v Harpur (No 2)

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Case Copied 11 November 2011 38 min read

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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

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.

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…

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: [2011] VSC 568
Decision Date: 11 November 2011

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