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:

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.

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.

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.

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.

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].

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.

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…

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: [2022] VSC 106
Decision Date: 7 March 2022

CaseChat Overview and Summary

In Malone v La Playa Nominees Pty Ltd (No 2), the plaintiff sought a declaration and an account of profits against the defendant, who was the trustee of a trust. The plaintiff alleged that the defendant had breached the terms of the trust. The case was heard in the Supreme Court of New South Wales. The primary legal issues the court needed to resolve were the apportionment of costs between the parties, given that neither had been entirely successful in their claims, and the appropriate approach to costs in cases with a defensive nature.

The court considered the principle set out in Firebird Global Master Fund II Ltd v Republic of Nauru (No.2) that in cases where neither party has been entirely successful, the court should assess the degree of success achieved by each party. The court determined that the plaintiff had achieved partial success on several factual issues and had obtained the baseline relief sought, while the defendant had largely succeeded in defending the claims. However, the court emphasised the defensive nature of the plaintiff’s proceeding. Based on this, the court held that the plaintiff should bear a substantial portion of the costs. The court further reasoned that, in light of the nature of the case, the plaintiff’s success was not sufficient to warrant an order that the defendant pay more than half of the costs.

The court ordered that the parties bear their own costs up to a specified date, after which the defendant was to bear 70% of the costs and the plaintiff 30%. This apportionment reflected the court's view that the plaintiff's proceeding was largely defensive in nature, and the degree of success achieved by the plaintiff was not sufficient to warrant a more favourable cost order.

Orders