McLean v Cree (No 2)

The case of McLean v Cree (No 2) was heard by the Supreme Court of Victoria. The matter involved a dispute over costs between the parties, with the plaintiff seeking an indemnity costs order from the defendant. The plaintiff claimed that the defendant had acted unreasonably in their conduct of the case, particularly during the final hearing, leading to increased costs. The defendant argued that they were surprised by the case run by the plaintiff at the final hearing, which had not been foreshadowed in the pre-trial processes.

The legal issue before the court was whether the plaintiff was entitled to an indemnity costs order from the defendant. This required consideration of the defendant's conduct throughout the case, particularly at the final hearing, and whether it was reasonable for the plaintiff to have anticipated the defendant's response based on the information provided. The court also had to assess whether the defendant's claim of surprise was sufficient to warrant a departure from the usual indemnity costs order.

The court found that the defendant's conduct during the case had been unreasonable, justifying an indemnity costs order against them. However, the court also considered the defendant's claim of surprise at the final hearing. While acknowledging that the defendant had not been entirely without fault, the court found that the plaintiff had not acted unreasonably in their case preparation and presentation. The court determined that the defendant's surprise did not sufficiently mitigate the unreasonable conduct to warrant a departure from the usual indemnity costs order. Consequently, the plaintiff was awarded costs on the indemnity basis, with specific reference to the defendant's unreasonable conduct and the plaintiff's entitlement to recover costs incurred as a result.

The final orders of the court were that the defendant pay the plaintiff's costs of the proceeding on an indemnity basis, with specific regard to the defendant's unreasonable conduct during the case. The court made no specific orders regarding the defendant's claim of surprise, finding it did not alter the outcome of the costs assessment. The plaintiff was entitled to recover the costs incurred in the proceedings, with the defendant liable for those costs on the indemnity basis.