Mole v Mole (No 2) - [2021] VSC 802

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S ECI 2021 04141

IN THE MATTER of the Will and Estate of COLIN GRAEME MOLE, deceased

COLIN CHARLES MOLE ANDREW JAMES MOLE NATHAN CHARLES MOLE	Plaintiffs
v
STEVEN JAMES MOLE (in his capacity as Executor and Trustee of the Estate of COLIN GRAEME MOLE, deceased)	Defendant

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JUDGE:	MOORE J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 November 2021
DATE OF JUDGMENT:	6 December 2021
CASE MAY BE CITED AS:	Mole v Mole (No 2)
MEDIUM NEUTRAL CITATION:	[2021] VSC 802

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COSTS – Interlocutory injunction – Application for judicial advice – Whether costs should follow the event – Plaintiffs failed to establish prima facie case – Defendant awarded costs on standard basis – Supreme Court Act 1986 s 24(1).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Davies Watson Pty Ltd
For the Defendant	Mr J Smith	Earl & Associates

HIS HONOUR:

On 11 November 2021 I dismissed an application by the plaintiffs for an interlocutory injunction restraining the defendant from treating as being terminated or rescinded certain contracts of sale of land. I published my reasons for judgment on 16 November 2021.[1]
[1]Mole v Mole [2021] VSC 752.

The remaining controversy between the parties is in relation to costs. The defendant seeks an order that the plaintiffs pay his costs of the unsuccessful application for interlocutory injunctive relief on an indemnity basis. The plaintiffs’ solicitor informed my chambers that he has been unable to obtain adequate instructions to make submissions on costs, but directed my attention to the decision of the Court in Tower Australia Ltd v Ambridge Investments Pty Ltd & Ors.[2]
[2][2003] VSC 478.

The Court’s power to award costs under s 24(1) of the Supreme Court Act 1986 is in the discretion of the Court and must be exercised judicially. The usual rule is that costs follow the event. In Oshlack v Richmond River Council, McHugh J stated that the expression the ‘usual order as to costs’:[3]

… embodies the important principle that, subject to certain limited exceptions, a successful party in litigation is entitled to an award of costs in its favour. The principle is grounded in reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant. Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party. If the litigation had not been brought, or defended, by the unsuccessful party the successful party would not have incurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation.

[3](1998) 193 CLR 72, [67].

In exercising my discretion as to costs, it is also necessary to have regard to the interlocutory nature of the application brought by the plaintiffs. As noted by Hollingworth…

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 Mole v Mole (No 2)

Details

AGLC: Mole v Mole (No 2) [2021] VSC 802
Case: [2021] VSC 802
Decision Date: 6 December 2021

CaseChat Overview and Summary

The case of Mole v Mole (No 2) involved a dispute between the parties over the interpretation and application of interlocutory injunctions and the associated costs. The matter was heard in the Family Court of Australia. The central issue was whether the costs incurred in an application for judicial advice should follow the event, with the plaintiffs arguing that they should not be liable for the defendant's costs due to their unsuccessful attempt to establish a prima facie case.

The court considered whether the plaintiffs' failure to establish a prima facie case warranted an order for costs to follow the event. The plaintiffs argued that the costs of the application for judicial advice should not be awarded to the defendant because they had not acted unreasonably in seeking the advice. However, the court found that the plaintiffs had failed to establish a prima facie case, and thus, the defendant was entitled to costs on the standard basis. The court relied on section 24(1) of the Supreme Court Act 1986, which provides that, unless the court orders otherwise, costs follow the event.

The reasoning of the court was that the plaintiffs had not succeeded in their application for judicial advice and had not established a prima facie case. Therefore, the defendant was awarded costs on the standard basis, which meant that the plaintiffs were liable for the defendant's costs of the application for judicial advice. The court concluded that the plaintiffs' failure to establish a prima facie case warranted an order for costs to follow the event.

In conclusion, the court awarded the defendant costs on the standard basis, as the plaintiffs had failed to establish a prima facie case and had not acted unreasonably in seeking judicial advice. The court's decision was based on the provisions of section 24(1) of the Supreme Court Act 1986.

Orders