Morgan v Bell [No.2 Costs]

[2011] VSC 393

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 09921 of 2007

MICHELLE AMANDA MORGAN	Plaintiff
v
GREGORY PETER BELL	Defendant

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JUDGE:	Vickery  J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 July 2011
DATE OF JUDGMENT:	22 August 2011
CASE MAY BE CITED AS:	Morgan v Bell [No.2 Costs]
MEDIUM NEUTRAL CITATION:	[2011] VSC 393

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COSTS – De facto relationship – Adjustment of property interests under Part IX Property Law Act 1958 – Whether interest payable on the adjustment sum - Offer of compromise made by defendant pursuant to r. 26.08 Supreme Court (General Civil Procedure) Rules 2005 – Whether plaintiff bettered the defendant’s offer of compromise – Defendant served notice to admit facts pursuant to r. 35.02 – Plaintiff disputes facts by notice of dispute which are later proven – Liability for costs pursuant to r. 63.18.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms B Tulloch of Counsel	Jane Curtis & Associates
For the Defendant	Mr P J Davis of Counsel	Wilmoth Field Warne Lawyers

HIS HONOUR:

Introduction

1. On 4 July 2011, the Court published its reasons for judgment (‘principal reasons’) in this proceeding. [1] In the principal reasons, it was determined that Ms Morgan, the plaintiff was entitled to an adjustment order under Part IX of the Property Law Act 1958 (Vic) (‘adjustment order’). The adjustment order required Mr Bell, the defendant, to pay the sum of $675,000 to the plaintiff.

   [1]Morgan v Bell [2011] VSC 302

1. I have since heard the parties as to what order should be made as to the costs of the proceeding and the removal of caveats which have been lodged over the defendant’s property.

Whether Interest Payable on the Adjustment Sum

1. Ms Morgan sought interest on the sum awarded in her favour.

1. However, as Giller v Procopets (No 2)[2] demonstrates, neither s 58 nor s 60 of the Supreme Court Act 1986 (Vic) applies to a pecuniary award made under Part IX of the Property Law Act 1958 (Vic). Kenyon v Akeroyd (No 2); [3] Manns v Kennedy [4] cf. Kellenick v. Apostolides & Ors No.2. [5]

   [2][2009] VSCA 72 at [

   [3] [2009] VSCA 168 at [13]

   [4][2007] NSWCA 217

   [5] [2009] VSC 410

1. No submissions were made suggesting that there was any other basis upon which interest might be allowed on the property adjustment amount.

1. For these reasons, the application made by Ms Morgan for interest on the sum awarded in her favour is refused.

Whether Costs Payable under Part IX Property Law Act 1958

1. The provisions of s 24 of the Supreme Court Act 1986 (Vic) and r 64.24 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) make it clear that the determination of costs is at the Court’s discretion. The discretion must be exercised judicially. Kenyon v Akeroyd (No 2). [6]

   [6] Ibid at [2]

1. In relation to claims made under Part IX of the Property Law Act 1958 (Vic), in Kenyon v Akeroyd…