Malone v La Playa Nominees Pty Ltd (No 2)

[2022] VSC 106

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PROPERTY LIST

S ECI 2018 00285

RAYMOND MCGREGOR MALONE	Plaintiff
v
LA PLAYA NOMINEES PTY LTD (ACN 071 767 863)	First Defendant
and
THE REGISTRAR OF TITLES	Second Defendant

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JUDGE:	O’Meara J
WHERE HELD:	Melbourne
DATE OF HEARING:	3 March 2022
DATE OF JUDGMENT:	7 March 2022
CASE MAY BE CITED AS:	Malone v La Playa Nominees Pty Ltd & Anor (No 2)
MEDIUM NEUTRAL CITATION:	[2022] VSC 106

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COSTS – Both substantive parties failed in much of the relief sought – ‘Defensive’ nature of plaintiff’s proceeding – Plaintiff enjoyed success on several issues of fact and obtained only ‘baseline’ relief sought – Apportionment of costs – Firebird Global Master Fund II Ltd v Republic of Nauru (No.2) (2015) 327 ALR 192 considered.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	AA Walker	T Squared Legal
For the First Defendant	KJD Anderson	Kalus Kenny Intelex
For the Second Defendant	J Collopy	Land Use Victoria Legal

HIS HONOUR:

1. On 25 February 2022 I delivered lengthy reasons for decision[1] and adjourned to allow the issues of final orders and costs to be considered and addressed by the parties. 

   [1]Malone v La Playa Nominees Pty Ltd [2022] VSC 83.

1. The parties are agreed concerning substantive orders disposing of the claim and counterclaim.  The second defendant confirmed the appropriateness of making an order directing it to reject the 2017 Application and that no order need be made concerning the plaintiff’s caveat. 

1. The present issue is costs.  No party seeks any costs order in respect of the second defendant; nor does the second defendant seek any order.

1. The plaintiff submits that the proceeding was necessarily ‘defensive’ and, in that, he was ‘wholly successful’ against the first defendant.  He says that costs should follow the event and that he should not be ‘punished’ for concessions made in running.  He submits that orders apportioning costs are generally to be avoided.  He also relies upon a Calderbank letter.

1. Counsel for the first defendant referred to the primary reasons at [435] to [436].[2]  She submitted that the result was ‘in effect, a draw’ and, consequently, each party ought be ordered to bear their own costs.  In that, she referred to some issues in respect of which the plaintiff ultimately failed.

   [2]First defendant’s submissions on costs dated 2 March 2022, [1].

1. Each party advanced a few further points – particularly in short written outlines of submissions – although the essential substance of the present dispute is captured above.  I have taken the further points into account.

1. As to the Calderbank letter, counsel for the plaintiff very properly acknowledged that the application based upon it is not a strong one.  On any view, the offer made within the letter was open for only a very short time.  That said, the plaintiff referred to other cases in which efficacious offers have been open for a short time.  In the end, such points turn on their own facts and in the present instance the timing of the offer was not the only issue.  I accept the essential submission of the first defendant to the following effect –

Firstly, the plaintiff has not done better than its offer which proposed adopting the Stansfield line for sections E, D and C, although the offer did concede a midway point for section B.  Second, having regard to the relevant factors to consider when considering if the rejection was unreasonable: the offer was made the day before trial; there was very limited time allowed to consider it; the extent of the compromise was negligible and there was no assessment of the offeree’s prospects of success as at the date of the offer …[3]

[3]First defendant’s submissions on costs dated 2 March 2022, [11].

1. Otherwise, both parties accept that costs is in the discretion of the Court.  The discretion must be exercised judicially.  Counsel for the plaintiff emphasises what he describes as the ‘strong presumption’ that costs ought follow the event.  The plaintiff also submits that ‘apportionment’ of costs – whilst available – was deprecated by the High Court in Firebird Global Master Fund II Ltd v Republic of Nauru (No.2).[4]

   [4](2015) 327 ALR 192 (‘Firebird’). See, outline of submissions on behalf of plaintiff re costs dated 2 March 2022, [3].

1. I accept that the usual rule is that costs follow ‘the event’.[5]  I also accept that a party is generally entitled to advance alternative arguments and it is unusual to apportion costs.  That said, apportionment may be ordered if it is fair and reasonable to do so.  The High Court did not suggest otherwise in Firebird.  Indeed, in Firebird ‘the event’ sought was relatively defined and so costs might have been thought to have followed on a conventional basis; even when, in that instance, the appellant enjoyed only narrow success in order to obtain it.

   [5]Counsel for the plaintiff relied upon authority to the effect that ‘the event’ is generally taken to mean the practical outcome of the proceeding: see, In the matter of Colorado Products Pty Ltd (in prov liq) [2014] NSWSC 1509, [6].

1. The present case is in many respects the obverse of Firebird.  The plaintiff enjoyed success on a number of factual issues relevant to the relief ultimately ordered on his claim and in respect to his successful defence of the counterclaim (particularly, in respect of the ‘lower red brick wall’, possession of ‘the fence’ and the agreement made at the meeting on 2 November 2017).  In that regard, the issues in respect of the claim and counterclaim were very much interlinked.

1. It is true that the plaintiff trimmed his case concerning the validity of the 2001 Application.  I do not accept the contention of the first defendant that the trimming of that issue bears much present relevance: after all, the 2001 Application remained relevant and both parties continued to contend that it had resulted in error.  I certainly do not accept that the trimming of that issue may be offset against the plaintiff’s success on the issue of the agreement.

1. I also do not accept that the trimming of that issue made significant aspects of the evidence irrelevant; especially in respect to the history of the ‘lower red brick wall’. That issue was and remained integral to the plaintiff’s defensive contentions concerning the first defendant’s claims concerning the building of ‘the fence’ in 1982/83.

1. Notwithstanding the above, it is inescapable that ‘the event’ that has ultimately come to be ordered in the present case is no more than the very ‘baseline’ of the relief sought by the plaintiff.  In truth, the plaintiff’s case extended well beyond that ‘defensive’ position and into elements of evidence, legal argument and claims to relief that were considerably larger and more assertive.  Among other things, the plaintiff sought to advance claims of intention to possess land of the first defendant in respect of which the evidence was, at the very most, wafer thin.  The positive claims to which I have referred all failed.

1. In that sense, unlike in Firebird, there is presently a substantive difference between the essence of the ‘the events’ sought at trial and ‘the event’ ultimately ordered.  That said, as I have noted, the plaintiff did enjoy significant factual successes and did obtain ‘baseline’ relief, and I do not overlook the fact that significant parts of the evidence and argument at trial might be thought to have been necessary in order to obtain that relief.

1. It will be apparent from the above that the submission of the first defendant to the effect that each party ought bear their own costs cannot be accepted.  However, it seems to me that it also cannot be accepted that it is fair and reasonable for the ‘usual rule’ to apply.  In my view, in the special circumstances of the present case, it is fairest that there be an apportionment of the plaintiff’s costs that recognizes that whilst he enjoyed factual successes, and did fend off the 2017 Application, there were failed parts of his case that made a palpable contribution to the length and complexity of the proceeding.

1. In the circumstances, I consider it to be fair and reasonable to order that the first defendant pay 80% of the plaintiff’s standard costs of the claim and counterclaim.