Manderson v Wright (Costs) - [2018] VSC 177

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

VALUATION, COMPENSATION & PLANNING LIST

S CI 2016 00839

WARWICK ALEXANDER MANDERSON	Plaintiff
v
VICKI LOUISE WRIGHT	Defendant

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JUDGE:	John Dixon J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 April 2018
DATE OF JUDGMENT:	17 April 2018
CASE MAY BE CITED AS:	Manderson v Wright (Costs)
MEDIUM NEUTRAL CITATION:	[2018] VSC 177

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COSTS – Costs of proceeding following trial – Defendants successful on discrete issue – Discretionary considerations – Defendant to pay 50% of plaintiff’s costs – Chen v Chan [2009] VSCA 233 applied.

COSTS – Application for gross sum costs order – Gross sum costs order not warranted – Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 63.07.

COSTS – Application by plaintiff for costs on indemnity basis – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C Raven, Raven & Associates
For the Defendant	Ms L Hicks	Best Hooper

HIS HONOUR:

The plaintiff applied for the costs of the proceeding. In doing so, the plaintiff contended that he was entitled to all his costs notwithstanding that he did not succeed on all aspects of his claim. Further, he contended that his costs should be taxed on an indemnity basis and that it was fair and just in the circumstances that I make a lump sum assessment of his costs in the sum of $460,000.

The defendant did not resist the proposition that the plaintiff was entitled to costs. However, she contended that a significant part of the proceeding concerned the plaintiff’s claim that the restrictive covenant protected the coastal Moonah woodland (CMW) and that he was entitled to orders for its reinstatement. As that part of the plaintiff’s claim failed, the plaintiff should be denied his costs and pay the defendant’s costs in respect of that issue.

I acknowledge that the general rule is that costs should follow the event and that, absent disqualifying conduct, the successful party should recover its costs even where it has not succeeded on all heads of claim.[1] That said, the court has an absolute and unfettered discretion in relation to costs,[2] and may, in appropriate circumstances, examine the realities of the litigation and attempt to achieve on the matter of costs substantial justice as between the parties.[3]
[1]Ritter v Godfrey [1920] 2 KB 47; Oshlack v Richmond River Council (1998) 193 CLR 72, 97-8 (McHugh J); 124 (Kirby J).
[2]Supreme Court Act 1986 (Vic), s 24(1).
[3]Spotless Group Limited v Premier Building and Consulting Pty Ltd and Northern Suburban Properties Pty Ltd [2008] VSCA 115 [14] (‘Spotless’).

The principles that govern whether there should be any apportionment of costs in a proceeding were set out by the Court of Appeal in Chen v Chan.[4] Where there is a multiplicity of issues and mixed success has been enjoyed by the parties, a court may take a pragmatic approach in framing the order for costs, taking into…

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.

Continue reading Manderson v Wright (Costs)

Details

AGLC: Manderson v Wright (Costs) [2018] VSC 177
Case: [2018] VSC 177
Decision Date: 17 April 2018

CaseChat Overview and Summary

In the matter of Manderson v Wright, the plaintiff sought various remedies following a trial, while the defendants contested the claims. The dispute was heard and determined by the County Court of Victoria. The central legal issues before the court encompassed the apportionment of costs following the trial, particularly given that the defendants had been successful on a discrete issue, and the appropriateness of a gross sum costs order.

The court considered the principles outlined in Chen v Chan [2009] VSCA 233, which provides guidance on the discretion to be exercised in the distribution of costs when one party has been successful on only part of the issues contested. Given the partial success of the defendants, the court found it appropriate to order that the defendants pay 50% of the plaintiff's costs. This decision was influenced by the need to fairly reflect the outcomes of the litigation while also considering the overall proportionality of the costs to be borne by each party.

Additionally, the plaintiff's application for a gross sum costs order was dismissed as the court deemed such an order not warranted under the applicable rules. The court also rejected the plaintiff's request for costs on an indemnity basis, finding that this was not justified in the circumstances. The court's final orders reflected these determinations, specifying the respective contributions to costs by the parties.

Orders