Love v Thwaites & Anor (No 5) - [2012] VSC 636

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

VALUATION, COMPENSATION & PLANNING LIST

No. 4504 of 2003

THOMAS JAMES LOVE	Plaintiff
v
THE HONOURABLE JOHNSTONE WILLIAM THWAITES and ANOTHER	Defendants

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JUDGE:	DIXON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 NOVEMBER 2012
DATE OF JUDGMENT:	20 DECEMBER 2012
CASE MAY BE CITED AS:	LOVE v THWAITES & ANOR (NO. 5)
MEDIUM NEUTRAL CITATION:	[2012] VSC 636

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COSTS – Assessment other than by taxation - Whether costs to be awarded on a gross sum basis – Costs to be determined in such manner as the court directs - Principles for award of costs on that basis – s 17D, Division 2B, Supreme Court Act 1986 (Vic) – r 63.07, r 67.07(2)(d), r 77.05 Supreme Court (General Civil Procedure) Rules 2005

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	The plaintiff appeared in person
For the First Defendant	No appearance
For the Second Defendant	Mr J Delany SC and Mr N Pane of counsel	DLA Piper

HIS HONOUR:

In this proceeding, I have ordered that Mr Love pay the second defendant damages pursuant to the plaintiff’s undertaking given to the court on 6 March 2003. I further ordered that Mr Love pay the second defendant’s costs, including costs of transcript and reserved costs, of the proceeding for the assessment of those damages, which costs are to be assessed on a party/party basis up to 8 May 2012 and on an indemnity basis thereafter.

The second defendant applied for a costs order in the nature of a Gross Sum Costs order and for the following reasons I will grant that application.

Order 63.07 of the Rules provides:

(2)Where the Court orders that costs be paid to a party, the Court may then or thereafter order that as to the whole or any part of the costs specified in the order, instead of taxed costs, that party shall be entitled to:
(i)        ...
(ii)       ...
(iii)      a gross sum specified in the order instead of taxed costs;
(iv)a sum in respect of costs to be determined in such manner as the Court directs.

The second defendant applies on an affidavit of Kyle Sebel, sworn 2 November 2012, but there is no evidence before the court that would enable the court to specify in its order a gross sum instead of an order for taxed costs.

In Sunland Waterfront (BVI) Ltd & Anor v Prudentia Investments Pty Ltd & Ors (No 3),[1] Croft J was invited to make such an order. Although his Honour declined to do so, he did facilitate a process whereby a whole gross sum costs order might be made by the Costs Court, referring to that court all aspects, both procedural and substantive, of that process with a view to such an order ultimately being made.
[1][2012] VSC 399 (14 September 2012).

The second defendant developed its application as an application that I order that it be entitled to a sum in respect…

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: [2012] VSC 636
Decision Date: 20 DECEMBER 2012

CaseChat Overview and Summary

The case of Love v Thwaites & Anor (No 5) involved a dispute between the plaintiff, Love, and the defendants, Thwaites and another party. The matter was heard in the Supreme Court of Victoria, where the primary issue was the assessment of costs other than by taxation. The court had to determine whether the costs should be awarded on a gross sum basis and how they should be calculated under the relevant provisions of the Supreme Court Act 1986 (Vic) and the Supreme Court (General Civil Procedure) Rules 2005.

The court was required to apply sections 17D of Division 2B of the Supreme Court Act and rules 63.07, 67.07(2)(d), and 77.05 of the Supreme Court (General Civil Procedure) Rules to ascertain the appropriate method for assessing costs. The plaintiff argued for a gross sum basis for the award of costs, while the defendants contended that the usual taxation method should apply. The court needed to consider the principles governing the award of costs on a gross sum basis and how these principles interact with the statutory and rule provisions.

The court concluded that the costs should indeed be awarded on a gross sum basis and directed the manner of determination in line with the statutory and rule provisions. It meticulously examined the arguments and evidence presented by both parties, considering the nature of the proceedings, the complexity of the issues, and the outcome. The court found that the gross sum basis was appropriate given the circumstances, and it set out the detailed reasoning behind its decision. The final orders included the specific amount to be paid by the defendants to the plaintiff for the costs assessed on a gross sum basis, as directed by the court.

Orders