Monash City Council v Melville
[2000] VSC 69
•8 March 2000
| SUPREME COURT OF VICTORIA |
| Not Restricted |
COMMON LAW DIVISION
No. 5265 of 1999
| MONASH CITY COUNCIL | Plaintiff |
| V | |
| WILLIAM PATRICK MELVILLE and PATRICIA MAUREEN MELVILLE | Firstnamed Defendants |
| - and - | |
| REGISTRAR OF TITLES | Secondnamed Defendant |
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JUDGE: | Eames J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28-29 February 2000 | |
DATE OF JUDGMENT: | 8 March 2000 | |
CASE MAY BE CITED AS: | Monash City Council v Melville and Ors | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 69 | |
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Costs – whether indemnity costs or solicitor client costs should be awarded – whether proceedings unnecessarily prolonged prior to trial.
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APPEARANCES: | Counsel | Solicitors |
For the Plaintiff | Mr J. Williams | Maddoch Lonie Chisholm |
| For the Firstnamed Defendants | Mr G. Maguire | Andrew P. Melville |
| For the Second Defendant | No Appearance |
HIS HONOUR:
On Monday 28 February 2000 I delivered reasons for my decision to grant a declaration in favour of William Patrick Melville and Patricia Maureen Melville (the firstnamed defendants, and hereafter referred to as "the Melvilles") on their counterclaim against Monash City Council. Upon the conclusion of that hearing I then heard applications with respect to costs. The claim which had been brought against the Melvilles by Monash City Council - seeking to restrain the Registrar General and the Melvilles with respect to the Melvilles' claim that they had acquired an interest in land by adverse possession - had been dismissed without the calling of evidence. I had reserved the question of costs with respect to that action also.
Counsel for the Melvilles submitted that by reason of the conduct of Monash City Council the Melvilles should be paid their costs, including reserved costs, on an indemnity basis (or, at least, on a solicitor and client basis) both on the claim and also on the counterclaim. The reserved costs primarily relate to two interlocutory proceedings, one before Warren J and one before Master Wheeler.
Counsel for Monash City Council submitted, in response, that not only should the Melvilles’ claim for costs be substantially rejected, I should order, instead, that the Melvilles pay the costs of Monash City Council with respect to the two interlocutory proceedings and, furthermore, such costs should be paid on a solicitor/client basis. Additionally, so it was submitted, whilst conceding that Monash City Council should pay some costs with respect to the claim and counterclaim, those costs should be confined to costs incurred up to 31 August 1999 and should be only payable on a party-party basis. As to costs incurred after 31 August 1999, it was submitted that the Melvilles should pay the costs of Monash City Council, and those costs should be paid on a solicitor/client basis. The date is chosen because it is the date at which, so it is submitted, I should deem an offer of compromise was made by Monash City Council.
Debate over these contentions occupied one and half days, during the course of which I was referred to a wide range of opposing affidavits and other material, and substantial submissions on the relevant law were made by counsel. The issues raised in the interlocutory proceedings were also canvassed at length. The competing contentions have at least this much in common; on both sides it is contended that their opponent acted unreasonably in the conduct of the litigation, having unnecessarily prolonged its course and having caused the inappropriate incurring of costs.
The submissions made to me, and the contentions advanced in the respective affidavits, demonstrate a remarkable readiness of the parties and their solicitors to identify unreasonableness, unfairness, subterfuge and lack of good faith in their opponents. The conclusions which I have reached as to the appropriate orders to be made for costs need to be considered against the background of the wide ranging complaints advanced on each side as to the conduct of the litigation. It is necessary, therefore, to set out that background in more detail than would usually be necessary when giving reasons for decision in a costs application.
The issue which underlies the dispute as to costs, and which also underlay the two interlocutory proceedings, relates to the question whether the Melvilles fundamentally modified the basis and extent of the claim made by the Melvilles to an area of land owned by Monash City Council and known as Valley Reserve. Monash City Council contends that the claim which the Melvilles asserted in their first affidavits (and then maintained in their counterclaim), was later altered to a quite different claim, which was only identified, and supported by new affidavits, shortly prior to the commencement of the Trial.
The Monash City Council contends that there was a drastic change made to the claim. Had the Melvilles acknowledged earlier that they intended to change the claim, and had they supplied new material to support that claim, then it was likely that the Council would have withdrawn its writ at a date long before the trial. On behalf of the Monash City Council, its solicitor asserted that when the Council first suspected that the Melvilles were contemplating presenting a different case to that which had originally been presented in their supporting affidavits (as well as in letters from the Melvilles’ solicitor), the Council’s solicitor sought confirmation of that fact, and requested the Melvilles to apply to the court to amend the pleadings and to supply new particulars of their claim. Additionally, the solicitor required that the Melvilles support their new case by additional affidavits.
The Melvilles claim that the area of land to which they claimed title by adverse possession remained the same at all times. They contend that their claim to have acquired an interest in land by adverse possession was both clear and, at all times, unanswerable. At all times, so the Melvilles contend, they were claiming to have gained title by adverse possession to that portion of Valley Reserve which had originally been bounded by an old post and wire fence to the north of the northern boundary of the Melvilles’ property. At all times, so the Melvilles contend, they had said that the old fence had been replaced by a steel dropper and wire mesh fence which the Melvilles had placed along the same line as had been the old fence. My earlier judgment deals with this contention in more detail.
According to the Melvilles, the Monash City Council, knowing full well what was being claimed, and knowing that it had no answer to that claim, had seized on a minor error in description which the Melvilles had made in the first affidavits, and which their solicitor had also made in a letter to the Council. The same mistake was repeated in affidavits of some supporting witnesses. The Council, so it was alleged, seized on the minor error and pretended that it could not compromise the case and avoid costs, earlier, because there was a discrepancy between the area of land apparently claimed and the area of land over which the Melvilles asserted they had exercised exclusive adverse possession. According to the Melvilles, the area of land which they claimed to have occupied was always said to be that land south from the line of the old fence (and subsequently the line of the, newer, steel dropper fence) to the northern boundary of their own land.
The error was that in their early affidavits the Melvilles had said that the northern boundary of the claimed land was only a matter of some two metres north of the north east corner of the Melvilles' property and approximately three metres north of the north west corner of that property. Their solicitor wrote to the solicitor for Monash City Council and supplied a plan of sub-division. He said that the northern boundary of the claimed land was an old fence shown on that plan, being six foot three inches north of the northern boundary of the Melvilles' land. Some of the affidavits of supporting witnesses also adopted the measurement of six feet, or two metres. Those distances were wrong, as the Melvilles later discovered. In providing that information the Melvilles said they and their solicitor had been relying on distances recorded in documents, including dimensions shown on a plan of subdivision of the land, which showed the old fence as being a mere six feet three inches north of the boundary of their property. The correct position was that shown in different material, namely, plans of survey, which showed that the old fence was in fact 20 feet 10 inches north of the boundary of their property.
The Melvilles contend that the Council knew, at all times, that the claim was being made to an area of land south of the old fence line, whatever distance that was from the northern boundary of the Melvilles’ property. It was of no importance that the Melvilles and their solicitor had initially, and mistakenly, said that their boundary was six foot three inches, or thereabouts, to the north of their property. The Council knew the correct distance, because the Council had access to the same plans of survey, had had its own surveyors inspect the land, and had subsequently had it pointed out to them by the Melvilles’ solicitor (with qualified support from the office of Registrar General) that the plan of subdivision contained an error as to the relevant distance.
To demonstrate that the Council had long known the true position, the Melvilles referred to two plans of survey which were annexed to an affidavit of Ian Marsh, sworn 19 June 1999. Marsh was an employee of Monash City Council, and a surveyor. One plan of survey, conducted in 1950, showed that the old fence, i.e. the claim boundary, was 20 feet 10 inches north of the Melville’s property. The second plan of survey was one made in 1963, and showed such a fence as being only six foot three inches to the north of the boundary of the Melville’s property. As noted earlier, when the Melvilles’ solicitor had forwarded a plan of sub-division to the plaintiff’s solicitor that, too, showed the measurement of six feet three inches. In their first affidavit, the Melvilles had described the position of the fences as being that shown on Exhibit M1, a plan prepared for their application by surveyor, Mr W.K. Pattison, which indicated (but not directly) that the fence was more than the short distance from their property which they had said, and must have been closer to 20 feet to the north.
It followed, so it was submitted, that Marsh was aware of the 1950 survey, and must have accepted it as being the correct statement of the true position as at 1999. Thus, it followed that the Council knew the correct position.
Further evidence of the mendacity of the Council, in claiming uncertainty as to the location of the fence, was said to arise from an attendance at the Melvilles’ property, soon after the writ was issued, of surveyors engaged to perform work on behalf of the Council concerning an adjoining property, part of whose brief was to consider potential claims of adverse possession over the reserve. They must have ascertained the correct position, so it was submitted. It was significant, so it was submitted, that those persons had not sworn affidavits. It is not necessary that I examine the detailed arguments presented in response to those contentions. It is sufficient to note that I do not draw the conclusions that the Melvilles would have me draw from these facts, having regard to the material referred to by counsel for Monash City Council in his response to the arguments.
Counsel for the Melvilles submitted that Monash City Council continued the proceedings for an ulterior purpose, namely, that by utilising its superior resources it would frighten the Melvilles into a disadvantageous settlement. One factor said by the Melvilles to demonstrate attempted intimidation was the fact that the trial was set down for 10 to 12 days upon the estimate given to the Listing Master by counsel for the Monash City Council. The trial could not possibly take that time, the Melvilles contended, if properly presented. By the time of trial there were in excess of 40 witness statements filed. My own view is that the estimate of the duration of the trial was quite realistic.
In examining, at some length, the respective contentions of the unreasonableness of the behaviour of their opponents, what emerges is a picture of developing distrust and intransigence as between the solicitors, and probably their clients, also. In that atmosphere, although the correspondence remained tolerably civil, every contention made by the opponent was treated as providing further evidence of the duplicity and unreasonableness of that opponent. There were a number of factors which contributed to that deteriorating professional relationship.
Andrew Melville, the solicitor for the firstnamed defendants is their son. Not only did he act as solicitor for his parents he swore affidavits as to the merits of their case, and thus, may well have become a witness at the trial. He professes a special expertise in cases concerning adverse possession claims. It is quite obvious that from the outset he was of the opinion that his parents' claim was unanswerable. Thus, in a letter written to the solicitor for the Council even before the writ had been served on his clients, he stated that in counsel's view, and his own, his parents claim was “one of the more straight forward claims for adverse possession”. In the same letter, dated, 13 May 1999, he played his own part in ensuring that it would not prove to be so straight forward, by identifying the claim as being to an area shown in the plan of subdivision at a fenceline 6 foot 3 inches from the northern boundary of his parents' property.
The solicitor plainly considered that the Council should acknowledge that the Melvilles had an unanswerable claim based on adverse possession. The failure of the Council to promptly agree seems to have been readily identified as wilful prevarication. From the perspective of one so confident of the merits of his parent’s claim all actions of the Council or its solicitor seem to have been viewed with suspicion. The present applications, and the claims of improper delay and unnecessary incurring of costs, continue to be viewed though a very subjective prism. I have no doubt that there were faults on both sides that contributed to the fact that costs were incurred which might have been avoided, and to the failure to achieve early resolution of the case, but the degree of suspicion which seems to have arisen between the lawyers must have been a significant factor in itself.
The contention that the proceedings were continued when Monash City Council knew that it had no chance of success was based on a number of factors, commencing with the fact that Monash City Council ultimately did not proceed with its claim or defend the counterclaim. Additionally, reliance was placed on a note in the minutes of a meeting of the Council held on 21 September 1999. That minute was obtained by the Melvilles when they attended the offices of the Council on 11 February 2000, and asked to see the minutes of 21 September 1999. They wrote down what was recorded. The minute noted what the Chief Executive Officer had said in responding to the statement of one councillor that he had visited the site of the disputed land and was of the opinion that the claim of the Melvilles to adverse possession should be resisted.
The note recorded the CEO as saying that councillors should keep in mind that if the matter went to court it was likely to cost Council a lot of money as their solicitors had advised that “we are likely to lose the case”. That evidence was objected to on the grounds of legal professional privilege. The heading to the note prominently described them as being “Confidential Minutes”.
An answering affidavit from an officer of Monash City Council disclosed that he had handed the minute books to the Melvilles without being aware that they contained confidential minutes, and that when they subsequently returned and asked for a photo copy of the minute he realised, at once, that they had been placed in the minute book by mistake. He told the Melvilles that was so, and that ordinarily they would have been treated as documents exempt from disclosure under freedom of information legislation.
I was asked to make a finding that there had been waiver of privilege, but it is unnecessary that I do so. I deal with the question of the minutes without ruling whether the privilege has been waived because I am satisfied that even if I have regard to the minute it does not lead to the conclusion for which the Melvilles contend. At the time when the meeting was held the Melvilles' claim, arguably at least, was a claim which was being formally made only to a lesser area of land than that which it later became, and as to which I subsequently made a declaration. In other words, even if the minute was taken at its highest (and it is a report of an opinion as conveyed, by a non-lawyer, in the most cryptic of terms) an innocent explanation is open. At this time it was the contention of the solicitor for the Council that the claim, as it stood, was only to an area which ran north to a line two metres (at one end) and three metres (at the other end) from the boundary. A few weeks before the Council meeting Monash City Council had made an offer to compromise which involved a grant of title to that approximate area, and offered a mere licence to an area further to the north of that area. In other words, the note was consistent with there having been advice that the Council could not resist the claim to that lesser area, but could resist a claim to an area larger than that first identified.
I am not persuaded that the minute provides proof that the Council had been acting with bad faith in continuing to prosecute its claim as long as it did.
This issue is relevant in another way, too. What is apparent is that it must have been obvious to the Melvilles (both of whom are retired solicitors) that they were viewing a document which had been handed to them by mistake, and to which a claim of privilege would undoubtedly have been made had the Council officer adverted to the fact that a confidential note was contained in the minute book. Were I to have ruled on the question of privilege, that fact would have been important when considering whether it would have been unfair to have held that a waiver had taken place.
In addition to the matters identified, above, which fuelled the belief of the Melvilles and their solicitor that the Council was being deliberately prevaricating and obtuse (because it knew it had no case), the Melvilles referred to the fact that in July 1999 an inspection of the property was conducted, with lawyers representing the Council being in attendance as well as counsel employees (including the surveyor, Ian Marsh) who had sworn affidavits in opposition to the contentions of the Melvilles. The Melvilles considered that the inspection should have removed all doubt as to the area under claim and as to the area over which adverse possession could be established.
Accordingly, so the Melvilles contended, it was humbug for the Council to pretend that there was any doubt as to the area claimed, and the extent over which the Melvilles could contend that they could prove title by adverse possession. Rather than accept that it was quite clear what constituted the claimed area, the Council pretended to be uncertain, so the Melvilles contend, and maintained its opposition to the claim. It also insisted that the Melvilles make unnecessary applications to the court to amend the way in which the case was pleaded, and apply to the court for leave to file new affidavits explaining that when witnesses had adopted the distance of 6 feet 3 inches, they were simply repeating the error of the plan of subdivision. I do not conclude that the fact that there had been such an inspection demonstrated that neither the solicitor for the Council (who had not, herself, been in attendance) nor the Council had maintained the opposition to the claim in good faith.
I turn then to look at the first interlocutory proceeding in which costs were reserved.
The Melvilles, through their solicitor, contended that their opponents had refused to concede from the outset that they could not contest the claim, and this led to a summons being taken out by the Melvilles in the Practice Court, which came before Warren J on 23 June 1999. The Melvilles, on advice of counsel and no doubt also that of their solicitor, sought an order for summary judgment, asserting that, on the pleadings, there was no basis for the denial of the adverse possession claim, and also seeking a declaration that the caveat had ceased to have effect. This application was met by a summons from Monash City Council seeking to restrain the Registrar from acting as though the caveat had lapsed.
Monash City Council submitted to me that the Melville’s summons was misconceived and, if it was to be brought at all, should not have been brought in the Practice Court rather than before a Master. Furthermore, it could never have been resolved in the Practice Court, because that summons sought, in effect, to have a trial in the Practice Court of all of the issues which were in contention at the trial. Additionally, so it was submitted, the summons made contentions as to the law and pleadings which had no substance and could never have succeeded.
The two summonses were not dealt with, save that a consent order was made by Warren J which referred the proceedings to mediation, and gave directions as to the filing of affidavits and the conduct of the trial. Costs were reserved.
The mediation failed, and on both sides the impasse continued. The Council insisted that if the Melvilles were intending to assert that they had a claim based on adverse possession to an area extending beyond six feet three inches from their boundary, that required an application for leave to amend the pleadings, further particulars, and fresh affidavits explaining the errors manifest in almost all of the existing affidavits as to the distance being six feet three inches or thereabouts. In the event that such applications were made then it was also made clear that Council would seek a penalty as to costs. The Melvilles’ solicitor denied that the claim had changed, and refused to make any application to the court. By a letter dated 18 October 1999 the Melvilles’ solicitor said : ”My clients are concerned at the unnecessary and costly red herring arguments which they believe are being advanced by the legal practitioners for the plaintiff, solely for purposes other than the interest of justice”. He added that his clients’ claim remained “indisputable”.
In November 1999 the Melvilles’ solicitor filed a notice to admit facts, but the Council would not admit the various surveys and field notes of the surveyors, nor concede the qualifications of the surveyors. On behalf of the Melvilles it is submitted that this was another instance of the inappropriate conduct of litigation and the failure to save time and costs by the admission of facts which should have been non-contentious. For the Council, it is submitted that the issues were indeed contentious, so long as the Melvilles refused to make application to the court to put their case on a new footing.
On 4 February 2000 the Melvilles filed a batch of eight new affidavits, followed, on 8 February by another four, and then on 14 February by another two. The trial was listed to commence on 25 February. The Melvilles had discovered that the area of the claimed land had been incorrectly calculated to be 438 square metres, rather than 428 square metres. Affidavits correcting that error were among those filed, but the new affidavits also addressed the very matters which the solicitor for Monash City Council had long been contending needed to be addressed.
There was then a dispute between the parties as to whether the filing of these affidavits complied with the order of Warren J, or required leave. The Council was not prepared to consent to their filing, and issued a summons which came on for hearing before Master Wheeler on 17 February 2000. It is that proceeding which is the second interlocutory proceeding where costs were reserved, and which is relevant to the costs application now before me. The summons sought the vacating of the trial date, and an order that the Melvilles not be permitted to rely on the new affidavits.
The Council contended that the claim had changed, that it was embarrassed in its presentation of the case, that there was a need for surveyors to be obtained, and for fresh instructions to be taken as to the new affidavits. In the course of the hearing before Master Wheeler, the Melvilles sought to rely on the confidential minute relating to the legal advice received by Monash City Council. The application for vacating the trial date was refused by Master Wheeler. Master Wheeler made a number of orders, both sides now claiming victory in the application. He ordered the Melvilles to supply further particulars of their claim, but he also granted leave (“if necessary”) for the Melvilles to rely at trial on the new affidavits, and gave leave to the plaintiff to file new affidavits. He made other orders and reserved costs.
The trial of the claim and counterclaim was listed to commence on 25 February 2000. On 21 February the solicitor for the Council wrote advising the Melvilles that having regard to the new affidavits, which were now to be available in the trial, and to the expectation that the counterclaim would now be amended so that only what the solicitor called “the reduced disputed land”, would now be claimed, it no longer opposed the application made to the Registrar General. The Melvilles contend that save for the minor miscalculation (by 10 square metres) of the area of land claimed, their claim had not been reduced, at all, and the Council well knew that, but was adopting a face-saving description so as to mask the fact that there was never any basis for confusion, nor for their opposition to the claim. Whilst I think there probably was an element of face-saving in so describing the amended claim (which, if anything, concerned a larger area than that initially described by the Melvilles in their early affidavit) I do not consider that that constituted an admission that the opposition to the claim had been unreasonably maintained.
During the period of the stand-off which had been maintained between the parties, certain offers of compromise were made on both sides. The failure of the opponent to accept the offer is on each side said to be a factor relevant to the respective contentions as to the appropriateness of indemnity, or solicitor client, costs orders.
On 26 August 1999 the Melvilles made a “Calderbank” offer by letter to the Council. The offer required that the Council’s claim be dismissed and a declaration as to adverse possession be made in favour of the Melvilles for the same area with respect to which I subsequently did give such a declaration. The Council was also to consent to a declaration that its caveat had lapsed. In return, the Melvilles would accept $15,000 in satisfaction of costs.
On 31 August 1999 the Council made an offer to compromise under Part 3 of Order 26 of the Rules. In that offer, title to an area being three metres north of the boundary of the Melvilles property at one end, and two metres north, at the other end, was offered, and a licence was offered as to the balance of land from that point, north to the steel dropper fence. A second offer of compromise, dated 21 February 2000, was made under Part 2 of Order 26 of the Rules. That effectively offered to withdraw opposition to the maintenance of a claim before the Registrar General with respect to the whole of the land to which I later granted a declaration of title.
Although I have regard to those offers, in my opinion, they must be assessed against the background which I have set out, above, at some length.
The Melville’s offer was made at a time when they refused to accept that their claim was confusing and required regularising by additional affidavits and other procedural steps. The declaration which was sought as to the lapsing of the caveat was hotly contested by the Monash City Council, which considered that the caveat had not lapsed at all, and that the proceedings taken in the Practice Court to obtain that declaration had been misconceived. The Council’s offer, in turn, refused to address the reality of the position which the Melvilles were advancing, and in any event, even if the second offer was backdated by virtue of the later delivery of new affidavits, it did not, in my view, represent an offer which bettered the outcome obtained in the trial by the Melvilles. Fundamentally, both offers were flawed by virtue of the failure of the parties to resolve the impasse as to the nature of the claim; that failure being due, in large part, to intransigence on both sides.
Rule 63.31 provides that as a general rule costs will be taxed on a party party basis, in the absence of special considerations. There are many cases with deal with the circumstances which might be considered sufficient to justify a departure from that rule: see Colgate-Palmolive Company v Cussons Pty Ltd[1]; Preston v Preston[2]; Fountain Selected Meat (Sales) Pty Ltd v International Produce Merchants Pty Ltd[3]; Bendigo Bank Limited v Russo and Reichman[4]. As is made clear in those cases, among the matters which might give rise to such an order is misconduct causing a loss of time, and/or inconvenience to the parties, or the court; proceeding in wilful disregard of known and/or established facts; the making of wild and contumelious allegations; the imprudent refusal of an offer of compromise might also lead to such a penalty. Where matters are not seriously in dispute the failure to admit those facts could lead to a penalty by way of indemnity costs[5]. In this case, it was submitted that the Melvilles were put to their proof on matters which should have been uncontentious - such as the refusal to admit facts relating to surveys, and field notes of surveyors, and the obligation to serve new affidavits.
[1] (1993) 46 F.C.R 225.
[2] [1982] 1 All ER 41, at 58.
[3](1988) 81 ALR 397, at 401.
[4] Unreported, 27 October 1997, per Hedigan J.
[5] See: Polygram Records Inc v Raben Footware Pty Ltd 140 ALR 617.
Given that at the hearing Monash City Council was content to have the claim dismissed and not to contest the counterclaim, it is quite plain that the matter was capable of being resolved before trial. There most probably was an unnecessary rigidity in the approach taken on behalf of the Council. The refusal to accept the last batches of affidavits (save by court order) was one instance of that rigidity, but the seeds of difficulty with this litigation had been sown, and the impediments to its resolution had become apparent, at an early stage, and fault lay on both sides.
I do not conclude that the failure to admit facts, or the maintenance of its position by Monash City Council as to the change of the Melvilles’ claim was a tactical exercise and that there was not a genuine dispute so far as the Council was concerned. That is not to say that the matter could not have been dealt with more expeditiously. But it seems to me that the contention advanced from the outset by the Melvilles’ solicitor that the claim was unanswerable, and should have been conceded by Monash City Council, made it difficult for him to understand why others might not agree, and be unwilling to adopt that course. The Council was concerned with an application to acquire, by adverse possession, land which was part of an area set aside for the benefit of the public. It was appropriate that the Council should have been anxious to ensure that the boundaries of the claimed land be clearly understood, and that there be clarity as to the extent to which the claim for exclusive possession related to the whole or only part of that area. Notwithstanding the fact that I granted the declaration sought by the Melvilles, I do not consider that their claim, at any time, could have been regarded as being unanswerable. I note that there was no opposition to the claim before me, therefore no person taking the role of contradictor in the hearing.
It is clear from the authorities that even when special features are established the court is not obliged to grant the order for indemnity or solicitor client costs[6]. I am not persuaded that circumstances exist here that justify departure from the usual order that costs be on the party party scale. As to the costs of the interlocutory proceedings I consider that the appropriate order is that each side should bear their own costs.
[6] see too Allucraft Pty Ltd v Grocon Ltd, unreported decision 25 May 1994, per Smith J.
I was asked to make a declaration that it was appropriate that the Melvilles had engaged the solicitor, Andrew Patrick Melville, a sole practitioner practising in Rutherglen, as the solicitor who conducted the trial. Were I to do so he could claim on taxation his costs of accommodation and other expenses, including agent costs, associated with his attendance in Melbourne for purposes of the litigation. It was submitted that Andrew Melville was a person with special qualifications to conduct the litigation, as a person expert in such property law matters.
I decline to make such a declaration. There was no shortage of practitioners in Melbourne who had both the expertise and the appropriate objectivity to have conducted the case. As I earlier noted, Andrew Melville not only acted as solicitor for his parents but swore affidavits as to the merits of their claim, and as such could well have become a witness in the case. His personal involvement, in my view, carried the potential for loss of objectivity, and his involvement was to be discouraged, not encouraged, in my opinion.
I queried whether it was the case that should I refuse to grant indemnity costs or solicitor client costs to the Melvilles their son, the solicitor on the record, would nonetheless require them to pay the difference between scale costs and solicitor client/indemnity costs. I was told that the Melvilles had entered a costs agreement with their son in which they were committed to do so. I asked if they would be sued on that agreement should they not pay, as demanded, and I was told that their son would not do so, but would nonetheless render an account to them. This all reeks of artificiality.
The orders I will make are:
(a) That as to the costs reserved by Warren J on 23 June 1999, and as to the costs reserved by Master Wheeler on 17 February 2000, I order that each side shall pay their own costs.
(b) That save for the costs in paragraph (a), above, the plaintiff Monash City Council pay the costs of the firstnamed defendants of the claim and counterclaim (including the costs of the application for costs made to me) and any other reserved costs, such costs to be taxed and paid on a party party basis.
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