Ozaltay v Atilla (No 3) - [2020] VSC 34

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S CI 2013 03714

BOURHAN OZALTAY and SAFAK OZALTAY	Plaintiffs
-and-
SELEN ATILLA	First Defendant
-and-
SIBEL COFFEY (also known as SIBEL MUSTAFA)	Second Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF RULING:	10 February 2020
CASE MAY BE CITED AS:	Ozaltay v Atilla & Anor (No 3)
MEDIUM NEUTRAL CITATION:	[2020] VSC 34

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COSTS — Where first defendant’s application for costs against plaintiffs’ solicitors failed — Where first defendant rejected two offers of compromise by solicitors — Rejection of offers of compromise unreasonable — Indemnity costs awarded — Supreme Court Act 1986 (Vic) s 24(1); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 63.28 – Hazeldene’s Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) (2005) 13 VR 435.

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APPEARANCES:	Counsel	Solicitors
For the First Defendant	No appearance
For Bowlen Dunstan & Associates	Mr J Hartley	Lander & Rogers Lawyers

HER HONOUR:

Introduction

In reasons for judgment dated 1 November 2017, the Court dismissed the plaintiffs’ claim for possession of property at 20 Woolnough Drive, Mill Park, in the State of Victoria (the ‘Mill Park property’).[1] Subsequently, orders were made giving effect to the judgment.[2]
[1]Ozaltay v Atilla [2017] VSC 664.
[2]See Ozaltay v Atilla (No 2) [2018] VSC 764 (‘Ozaltay (No 2)’).

By amended summons filed 20 March 2018, the first defendant sought, inter alia, costs against the plaintiffs’ former solicitors, Bowlen Dunstan & Associates (‘Bowlen Dunstan’) assessed on an indemnity basis, by reason of the abandonment of what was described in the reasons as the secured loan claim.[3]
[3]Ozaltay (No 2), [8(a)], [11].

The secured loan claim was made by the plaintiffs against the first defendant pursuant to a loan agreement dated 23 September 2002. In May 2013, the plaintiffs sought payment of the sum of $451,104 from the first defendant under the loan agreement. By writ dated 5 July 2013, the plaintiffs issued the proceeding seeking payment of this amount, interest and a declaration that the plaintiffs were entitled to an equitable charge over the Mill Park property.

In his affidavit sworn 24 April 2018, Mr James Bowlen, the former solicitor for the plaintiffs, deposed that by letter dated 15 July 2016 he informed the first defendant’s solicitors that the plaintiffs elected not to pursue the secured loan claim. On 2 September 2016, orders were made granting leave to the plaintiffs to amend their claim by deleting the secured loan claim. The Court also ordered that the plaintiffs pay the first defendant’s costs thrown away of and incidental to the third party notice and of the amended statement of claim on a standard basis, to be taxed in default of agreement. The further amended statement of claim was filed on 5 September 2016.[4]
[4]Ozaltay (No 2), [14]–[15].

The Court dismissed the first defendant’s amended summons seeking costs…

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 3)

Details

AGLC: Ozaltay v Atilla (No 3) [2020] VSC 34
Case: [2020] VSC 34
Decision Date: 10 February 2020

CaseChat Overview and Summary

Ozaltay v Atilla (No 3) involved a legal dispute between the plaintiff and two defendants. The case was before the Supreme Court of Victoria and centred on the issue of costs, specifically whether the first defendant was entitled to recover costs from the plaintiffs’ solicitors for rejecting two offers of compromise. The first defendant had applied for costs against the plaintiffs' solicitors on the basis that they unreasonably rejected two offers of compromise. The court had to determine whether the first defendant’s application for costs was justified and whether the plaintiffs' solicitors had unreasonably rejected the offers of compromise.

The court examined the relevant legislation and case law, including section 24(1) of the Supreme Court Act 1986 (Vic) and rule 63.28 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), as well as the principles outlined in Hazeldene’s Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) (2005) 13 VR 435. The court found that the first defendant's application for costs against the plaintiffs' solicitors failed because the rejection of the offers of compromise was not unreasonable. However, the court determined that the first defendant was entitled to indemnity costs for the costs incurred in the proceedings against the plaintiffs' solicitors. The court found that the first defendant had rejected the offers of compromise unreasonably, and therefore, the plaintiffs' solicitors were entitled to indemnity costs.

The court ordered that the first defendant pay the plaintiffs' solicitors' costs of the proceedings against them on an indemnity basis. This decision highlights the importance of carefully considering offers of compromise in litigation and the potential consequences of unreasonably rejecting such offers.

Orders