Mareva Building Consultants v Zevon (No. 2) [2012] ACTSC 24 (8 February 2012)
COSTS – Discretion to order costs –Apportionment of costs where plaintiff is partially successful –Court Procedure Rules 2006 (ACT) – r 1725 – Whether costs should be limited to costs the plaintiff would have been entitled to recover if the proceedings were started in the Magistrates Court
Court Procedures Rules 2006 (ACT) rr 21, 1705, 1721, 1725
Legislation Act 2001 (ACT) s 75B
Mareva Building Consultants v Zevon [2012] ACTSC 18
Hughes v Western Australian Cricket Association (Inc.) & Ors [1986] ATPR 40-748
Dodds Family Investments Pty Ltd (formerly Solar Tint Pty Ltd) v Lane Industries Pty Ltd (1993) 26 IPR 261
EMI Songs Australia Pty Ltd v Larrikin Music Publishing Pty Ltd [2011] FCAFC 92
Keddie v Foxall [1955] VR 320
No. SC 676 of 2009
Judge: Katzmann J
Supreme Court of the ACT
Date: 8 February 2012
IN THE SUPREME COURT OF THE )
) No. SC 676 of 2009
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:MAREVA BUILDING CONSULTANTS
Plaintiff
AND:HARRY ZEVON
First Defendant
VIDA ZEVON
Second Defendant
ORDER
Judge: Katzmann J
Date: 8 February 2012
Place: Sydney/Canberra
THE COURT ORDERS THAT:
The defendants pay 50% of the plaintiff’s costs.
The amount of costs be determined in accordance with r 1725 of the Court Procedures Rules 2006 (ACT) as in force until 31 December 2011.
On 27 January 2012 I delivered judgment in this matter, making an award of damages of $19,887 (including interest) in favour of the plaintiff (Mareva): Mareva Building Consultants v Zevon [2012] ACTSC 18.
Mareva was only partially successful. It failed to establish one of its two pleaded causes of action, with the result that it recovered less than a fifth of the damages it sought, although it succeeded in relation to all but one issue. My provisional view was that in all the circumstances Mareva should have only half its costs and foreshadowed an order to that effect. I asked the parties whether they wished to be heard against the order I proposed, indicating that if they did, I would make orders in chambers for written submissions. In the meantime, however, each of the parties made and exchanged submissions, obviating the necessity for orders to be made.
Both parties oppose an order that the defendants (Mr and Mrs Zevon) pay half of Mareva’s costs.
Mareva urges that costs be adjusted to take into account the amount of court time taken up with points about which Mr Zevon was unsuccessful, including matters on which the Court did not accept his evidence. It asserts that the proceeding was originally scheduled for “one plus” days but contends that Mr Zevon’s conduct increased the time for hearing to five days.
Whether or not Mr Zevon’s conduct increased the time of the hearing, in my opinion, an estimate of “one plus” days was wildly optimistic, having regard to the issues in the proceeding, the fact that the defendants were unrepresented, the disorganised state…
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- Case
- [2012] ACTSC 24
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was the appropriate apportionment of costs between the plaintiff and the defendant, given the plaintiff's partial success. The court was required to consider the relevant provisions of the Court Procedure Rules 2006 (ACT), specifically rule 1725, which outlines the discretion of the court in awarding costs. Additionally, the court needed to determine whether the costs should be limited to those the plaintiff would have been entitled to recover if the proceedings had been commenced in the Magistrates Court.
In reaching its decision, the court considered the principles of cost apportionment in cases of partial success. The court emphasised that costs should be awarded in a manner that is fair and just, taking into account the overall outcome and the nature of the claims and counterclaims. The court found that while the plaintiff was successful in part, the defendant's counterclaims were significant and complex, contributing to the overall length and expense of the proceedings. After weighing these factors, the court concluded that the plaintiff should be awarded 50% of their costs, reflecting the mixed outcomes of the litigation.
The court's final order was that the defendant was to pay 50% of the plaintiff's costs. This order reflected the court's determination that the plaintiff's partial success warranted a reasonable recovery of costs, balanced against the defendant's substantial counterclaims.
Orders
Orders of the court
1.
The defendants pay 50% of the plaintiff’s costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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