Mareva Building Consultants v Zevon (No 2)

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:

1. The defendants pay 50% of the plaintiff’s costs.

1. 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.

1. 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.

2. 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.

3. Both parties oppose an order that the defendants (Mr and Mrs Zevon) pay half of Mareva’s costs.

4. 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. 

5. 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…