Mitchell Asset Management Pty Ltd v Di Pasquale (No 2) - [2025] VSC 346

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

S ECI 2022 04903

MITCHELL ASSET MANAGEMENT PTY LTD	Plaintiff
v
MARISSA DI PASQUALE	Defendant

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JUDGE:	COSGRAVE J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF RULING:	16 June 2025
CASE MAY BE CITED AS:	Mitchell Asset Management Pty Ltd v Di Pasquale (No 2)
MEDIUM NEUTRAL CITATION:	[2025] VSC 346

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COSTS — Court has broad discretion — Whether costs to be awarded on a standard or indemnity basis — Failure to observe the rule in Browne v Dunn (1894) 6 R 67 — Groundless allegations of fraudulent or deceitful behaviour — Plaintiff to pay 40% of the defendant’s costs of the proceeding on an indemnity basis, the remainder on a standard basis — Refusal of Calderbank offers not unreasonable — BHP Billiton Olympic Dam Corporation Pty Ltd v Steuler Industriewerke GmbH (No 3) [2012] VSC 414, applied — Whether defendant liable for the costs of its withdrawn third party notice — Supreme Court(General Civil Procedure) Rules 2015 (Vic) rr 25.05, 63.15 — Soteriadis v Nillumbik Shire Council [2015] VSC 363 and GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd (2003) 201 ALR 55, applied.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M McKillop with Ms P Blackadder	Gadens
For the Defendant	Mr J Ribbands with Mr T Gorton	Walpole Johnson

HIS HONOUR:

Introduction

I handed down my reasons for judgment in this matter on 30 May 2025 (“the principal reasons”).[1] At that time, I set a timetable for the parties to confer about the form of order which would give effect to those reasons and the question of costs. If the parties could not agree, they were to file submissions setting out the orders sought and the reasons therefore. I now address those matters. This judgment uses the same abbreviations and terminology as the principal reasons.
[1]Mitchell Asset Management Pty Ltd v Di Pasquale [2025] VSC 307.

Di Pasquale, who succeeded at trial, seeks orders that:

(a) the proceedings be dismissed; and

(b) the plaintiff pay the defendant’s costs of and incidental to the proceedings, including reserved costs and the costs of the defendant’s third party notice, on an indemnity basis.

MAM seeks orders that:

(a) the proceedings be dismissed;

(b) the plaintiff pay the defendant’s costs of the proceeding against the defendant, including reserved costs, on an standard basis; and

(c) the defendant pay the third party’s costs of the third party notice on a standard basis.

Court’s discretion on costs — general principles

Section 24(1) of the Supreme Court Act 1986 (Vic) and Part 4.5 of the Civil Procedure Act 2010 (Vic) (“CPA”) (which deals with the Court’s powers as to costs) provide that the Court has a broad discretion in determining questions of costs.

Rule 63.02 of the Supreme Court (General Civil Procedure) Rules2015 (Vic) (“Rules”) provides that:

“The power and discretion of…

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: [2025] VSC 346
Decision Date: 16 June 2025

CaseChat Overview and Summary

The matter between Mitchell Asset Management Pty Ltd and Anthony Di Pasquale was heard in the Supreme Court of Victoria. The dispute involved claims by the plaintiff, Mitchell Asset Management, for unpaid fees and interest, alongside allegations of fraudulent and deceitful behaviour by the defendant, Mr Di Pasquale. The plaintiff also sought indemnity costs on the basis of the defendant's conduct.

The primary legal issues before the court were the assessment of costs, specifically whether they should be awarded on a standard or indemnity basis, and the appropriate treatment of the defendant's conduct in relation to allegations of fraud and deceit. Additionally, the court needed to determine whether the defendant should bear the costs of a third party notice that had been withdrawn.

The court found that the plaintiff's failure to observe the rule in Browne v Dunn constituted a failure to conduct the litigation in a professional and ethical manner, leading to the refusal of an indemnity costs order. Instead, the court ordered the plaintiff to pay 40% of the defendant’s costs on an indemnity basis and the remainder on a standard basis. The court also found that the refusal of Calderbank offers was not unreasonable, thereby not warranting indemnity costs. The defendant was not liable for the costs of the withdrawn third party notice, as the court held that the plaintiff had not incurred costs in relation to that notice.

The final orders included that the plaintiff pay 40% of the defendant’s costs on an indemnity basis and the remainder on a standard basis, and that the defendant was not liable for the costs of the withdrawn third party notice. The court's reasoning and the application of relevant rules and precedents were clearly articulated, providing a comprehensive resolution to the cost issues in the proceedings.

Orders