Oakley Thompson and Co Pty Ltd v Maisano (No 4)

[2015] VSC 354

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
COMMERCIAL COURT

S CI 2014 05814

OAKLEY THOMPSON & CO PTY LTD  (ACN 092 053 239)	Plaintiff
v
ANUNZIATO ENZO MAISANO (also known as MICHAEL MAISANO and MICHAEL MASON)	First Defendant
BODYCORP REPAIRERS PTY LTD (ACN 068 589 408)	Second Defendant

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JUDGE:	ELLIOTT J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 JULY 2015
FURTHER WRITTEN SUBMISSIONS:	20, 21 JULY 2015
DATE OF JUDGMENT:	24 JULY 2015
CASE MAY BE CITED AS:	OAKLEY THOMPSON & CO PTY LTD v MAISANO (No 4)
MEDIUM NEUTRAL CITATION:	[2015] VSC 354

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COSTS ― Plaintiff substantially successful ― Costs awarded in its favour.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S R Senathirajah	Oakley Thompson & Co Pty Ltd
For the First Defendant	In person
For the Second Defendant	Mr J G Levine	Fulton Legal

HIS HONOUR:

1    On 30 June 2015, I delivered judgment in this proceeding.  In so doing, I foreshadowed making certain declarations and orders.  The declarations proposed, and a procedural order, have now been made.  The only issue remaining is the question of costs.

2    The first defendant, Anunziato Enzo Maisano (“Maisano”) is self-represented.  He has made no application for costs.

3    Both the plaintiff, Oakley Thompson & Co Pty Ltd (“Oakley Thompson”) and the second defendant, Bodycorp Repairers Pty Ltd (“Bodycorp”) seek their costs.  It is convenient to deal with Bodycorp’s submissions first.

4    Essentially, Bodycorp submits that because Oakley Thompson failed to obtain any relief as sought in paragraphs 3 and 5 of the originating motion,[1] failed to obtain a declaration in the form of paragraph 4 of the originating motion,[2] and chose to give undertakings in order to obtain the relief sought,[3] Oakley Thompson was “in essence unsuccessful”.

[1]Oakley Thompson & Co Pty Ltd v Maisano (No 2) [2015] VSC 210, [71] and [137].

[2]Ibid.

[3]At [135].

5    Further, Bodycorp submitted, for the first time, that Oakley Thompson should have sought relief in the Costs Court Proceeding[4] rather than this proceeding.  It was submitted the commencement of an unnecessary proceeding was another reason why costs should be ordered against Oakley Thompson.

[4]For details of the Costs Court Proceeding, see Oakley Thompson & Co Pty Ltd v Maisano (No 2) [2015] VSC 210, [2], [57], [62] and [74].

6    Further, Bodycorp listed 8 separate matters for which it said that it should not be responsible for the costs referable to those matters.

7    Before addressing the issues raised, I refer to the history of how the issues for determination in this proceeding were identified.  On 6 May 2015, Oakley Thompson provided the court with a list of 4 issues for determination.  No response was received from Maisano in this regard.  However, in response Bodycorp listed 18 issues which it said were required for determination.  The final issues were resolved, in consultation with the court.   Those issues were the subject of trial.

8    In broad terms, a substantial number of issues raised by Bodycorp, that otherwise would not have been the subject of determination in the proceeding but for Bodycorp’s insistence, were either decided against Bodycorp or did not substantially alter the outcome of the proceeding.

9    Also speaking broadly, Oakley Thompson has been substantially successful in the proceeding.  The critical issues were whether or not Oakley Thomson had an enforceable equitable right, whether there was a means by which the taxation could be completed against Bodycorp in the Costs Court Proceeding and whether Oakley Thompson’s costs had been capped (such that their costs had already been fully paid by Maisano and only a relatively minor amount remained to be paid by Bodycorp).  On each of these issues, Bodycorp vigorously, but unsuccessfully, opposed Oakley Thompson’s position.  Contrary to Bodycorp’s submission, in essence Bodycorp was unsuccessful.

10    In short, although Bodycorp was successful in some of the points it made, in substance it failed to prevent Oakley Thompson getting the substantive relief that it sought.

11    In my view, the fact that not all declaratory relief as sought was obtained ought not preclude Oakley Thompson from recovering its costs.[5]  In substance, Oakley Thompson has obtained relief which, prima facie at least, would entitle it to proceed to complete the taxation in the Costs Court Proceeding and to exercise its equitable right to recover the remaining outstanding costs.

[5]With respect to the declaration in paragraph 5 of the originating motion, shortly after the trial commenced Oakley Thompson indicated it would not pursue that relief.  The reason this position was adopted was not because of anything stated by the defendants to the court, but rather as a result of a matter raised by the court itself.

12    In circumstances where Oakley Thompson was substantially successful, I do not propose to go through each of the matters raised by Bodycorp individually.[6]  I also think it is artificial for costs purposes to separate those matters Bodycorp sought to identify in the case put by Maisano as being different to the case of Bodycorp.  To the extent that the submission properly identified differences between the approaches of the defendants, in any event Bodycorp stood side by side with Maisano in seeking to establish that Maisano had a basis for resisting relief (so that Bodycorp could also potentially benefit from Maisano’s position).

[6]See Luxmore Pty Ltd v Hydedale Pty Ltd (2008) 20 VR 481, 484 [12] (Maxwell P and Kellam JA).

13    Finally, the attack on Oakley Thompson by reason that it commenced this proceeding, as opposed to seeking relief in the Costs Court Proceeding, is not only new but, at best, is largely a matter largely of form.  More substantively, the fact that the Costs Court Proceeding was being conducted by a judicial registrar and that declaratory relief was being sought at trial meant it was entirely appropriate it have an originating motion filed returnable before a judge in the trial division of the court.

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