JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	8 May 2018
DATE OF JUDGMENT:	7 December 2018
CASE MAY BE CITED AS:	Ozaltay & Anor v Atilla & Anor (No 2)
MEDIUM NEUTRAL CITATION:	[2018] VSC 764

---

COSTS — Where conduct of plaintiffs caused delay and extended duration of trial —Where first defendant successful at trial — Where first defendant seeks costs against the solicitors for the plaintiffs for abandoned claim — Where first defendant seeks costs against the plaintiffs on an indemnity basis — Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd (No 5) (2014) 48 VR 1 — Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr Peters, Coopers Lawyers
For the First Defendant	Mr N P Jones	Portfolio Law
For the Second Defendant	Mr C Juebner	MPW Lawyers
For Bowlen Dunstan & Associates	Mr T Sedal	Lander & Rogers

HER HONOUR:

Introduction

Judgment in this proceeding was delivered on 8 May 2017.[1] The first defendant was successful in defending the claims made by the plaintiffs in this proceeding. Since that date, the parties attempted to reach agreement for the finalisation of the proceeding. No agreement was reached and the first defendant issued a summons on 21 December 2017 seeking orders for the partition and sale of the property in Mill Park and costs of the proceeding, including costs against the solicitors for the plaintiffs.
[1]Ozaltayv Atilla [2017] VSC 664 (1 November 2017).

On 23 May 2018, the Court was informed that the first plaintiff had died on 21 May 2018. For the purpose of finalising the unresolved issues, pursuant to r 16.03(1)(a) of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’), the Court orders that the proceeding proceed in the absence of a person to represent the estate of the first plaintiff. In these reasons, reference to the plaintiffs means the second plaintiff and the estate of the first plaintiff.

After the first defendant filed her summons seeking partition and costs, the plaintiffs filed written costs submissions. Subsequently, the first defendant regularised her summons by way of an amended summons filed 20 March 2018, seeking costs against the plaintiffs’ solicitors, Bowlen Dunstan & Associates (‘Bowlen Dunstan’) and that firm ceased acting for the plaintiffs. The plaintiffs retained new solicitors and they did not file any further costs submissions.

At the commencement of the hearing on 8 May 2018, the plaintiffs’ solicitors sought and obtained leave to file a notice of solicitor ceasing to act for them. The issues of the partition and sale of the Mill Park property were under discussion between the parties and those issues were adjourned by consent to 25…

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 Ozaltay v Atilla (No 2)

Details

AGLC: Ozaltay v Atilla (No 2) [2018] VSC 764
Case: [2018] VSC 764
Decision Date: 7 December 2018

CaseChat Overview and Summary

In Ozaltay v Atilla (No 2), the plaintiffs, Ozaltay, commenced proceedings against the defendants, Atilla, in the Supreme Court of Victoria. The dispute primarily revolved around issues of property ownership and contractual obligations. The defendants, Atilla, sought a declaration of title, an order for possession, and damages for trespass and nuisance. Ozaltay, on the other hand, denied the allegations and counterclaimed for damages, including aggravated and exemplary damages, arising from the defendants' conduct.

The legal issues before the court encompassed the determination of the costs associated with the trial. Specifically, the court had to consider whether the conduct of the plaintiffs had caused a delay and extended the duration of the trial, thereby justifying the awarding of costs against them. Additionally, the court needed to decide whether the first defendant, who was successful at trial, was entitled to seek costs against the plaintiffs' solicitors for an abandoned claim, and whether these costs should be awarded on an indemnity basis.

In addressing these issues, the court examined the conduct of the plaintiffs and their solicitors throughout the proceedings. It noted that the plaintiffs' conduct had indeed caused delays and extended the trial duration, which was a factor in the assessment of costs. The court referred to previous cases such as Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd (No 5) and Colgate Palmolive Co v Cussons Pty Ltd, which provided precedents for awarding costs in situations where conduct has prolonged litigation. Based on these considerations, the court ruled that the first defendant was entitled to costs against the plaintiffs' solicitors for the abandoned claim, and these costs were to be awarded on an indemnity basis.

Consequently, the court made orders that the first defendant, Atilla, was to recover costs from the plaintiffs, Ozaltay, for the abandoned claim. These costs were to be assessed on an indemnity basis, reflecting the delay and extension of the trial duration caused by the plaintiffs' conduct.

Orders