Page v Long (Ruling as to Costs)

[2025] VCC 1293

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CI-22-02964

NEIL WILLIAM PAGE	Plaintiff
v
CHRISTOPHER ROSS LONG	Defendant

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JUDGE:	HER HONOUR JUDGE TRAN
WHERE HELD:	Melbourne
DATE OF JUDGMENT:	9 September 2025
CASE MAY BE CITED AS:	Page v Long (Ruling as to Costs)
MEDIUM NEUTRAL CITATION:	[2025] VCC 1293

REASONS FOR JUDGMENT
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Subject:ORDER FOR COSTS

Catchwords:              Calderbank offer – indemnity costs – where self-represented litigant – whether unreasonable not to accept

Cases Cited:BHP Billiton Olympic Dam Corporation Pty Ltd v Steuler Industriewerke gmbH (No 3) [2012] VSC 414; Igo Mischel (as Executor of the Estate of Maria Mischel) v Mischel Holdings Pty Ltd (in liq) (No 2) [2012] VSC 421

Judgment:                  Application granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms B Slocum	Rostron Carlyle Rojas Lawyers
For the Defendant	Mr J Williamson (solicitor)	ASW Lawyers

HER HONOUR:

Introduction

1The plaintiff, Neil Page, sued the defendant, Christopher Long, for trespass.  In reasons for judgment delivered 27 June 2025, the Court held that Mr Long had trespassed on Mr Page’s land on two occasions.  Judgment was given against Mr Long for damages in the sum of $120,000 (“the Judgment”).[1]

[1]        Page v Long [2025] VCC 868

2The parties appear to agree that costs should “follow the event” (i.e.: that Mr Long should pay Mr Page’s costs of the proceeding).[2]  However, there is a dispute about the basis on which those costs should be calculated.

[2]        See paragraph [3] of the defendant’s submissions as to costs dated 25 August 2025.

3On 6 August 2024, Mr Page’s lawyers had sent a letter to Mr Long, offering to settle the proceeding for $100,000 (“the offer”).[3]  The offer was open to be accepted until 13 August 2024.  Mr Long did not accept the offer.  Mr Page says that Mr Long’s failure to accept the offer was unreasonable.  He is seeking costs of the proceeding:[4]

(a)   on a standard basis to 13 August 2024; and

(b)   on an indemnity basis on and from 13 August 2024.

[3]Plaintiff submissions as to costs filed 18 July 2025 at paragraph [3] (“plaintiff submissions”) and affidavit of Thomas Lane-Porter affirmed 15 July 2025 at page 7-10 (“affidavit of Mr Lane-Porter”).

[4]        Plaintiff submissions at paragraph [2], page 1.

4Mr Long, on the other hand, says he should not be required to pay costs on an indemnity basis.

Parties’ submissions

5Mr Page submitted costs should follow the event.  He submitted that, as he was wholly successful in the proceeding, Mr Long should pay his costs.  He accepted that, up until 13 August 2024, Mr Long should be required to pay those costs on the standard basis.  However, on and from 13 August 2024, he submitted that Mr Long should be required to pay costs on an indemnity basis because it was unreasonable of him to reject the offer.  He also submitted that:

(a)   the offer was open for a reasonable time, given it was made just over a month before the commencement of trial and Mr Long had seven days to consider the offer;

(b)   the offer clearly identified Mr Long’s low prospects of success;

(c)   the offer gave Mr Long notice that exemplary damages would be sought and this could exceed $70,000;

(d)   the offer gave Mr Long information about the costs incurred to date and the further costs which may be incurred; and

(e)   although Mr Long was not represented by a lawyer, by the time the offer was made, he had had legal representation until 15 July 2024 and had made an offer of compromise while represented.

6Finally, Mr Page acknowledged that special considerations may apply to self-represented litigants when considering the making of special costs orders, but submitted, in the circumstances of this case, a special costs order should be made.

7Although he was not represented at the time of the offer or at trial, Mr Long is now once again represented by lawyers.  The Court has had regard to written submissions filed on his behalf by his lawyers dated 25 August 2025.[5]  In those submissions, Mr Long submits his defence was conducted consistently with the obligations imposed by the Civil Procedure Act 2010 (Vic) and that there is no evidence of:

(a)   improper or unreasonable conduct; or

(b)   increased costs for Mr Page due to Mr Long’s conduct, fraud, abuse of process, or prolonging the proceeding.

[5]         Although they were not filed within the time required by the Court.

8He also submitted the defence was reasonably arguable and advanced in good faith, and that the mere fact he was unsuccessful did not justify the award of indemnity costs against him.  

9Finally, he submitted that:

(a)   any punitive element in the damages award should be taken into account when assessing costs, as there may be an element of double counting; and

(b)   the Court should have regard to his limited resources to meet any judgment against him.

Consideration of relevant factors

10In the decision of BHP Billiton Olympic Dam Corporation Pty Ltd v Steuler Industriewerke gmbH (No 3),[6] Habersberger J describes the principles that guide a court when considering making an indemnity costs order for failure to accept an offer to settle the proceeding.  He described the “critical question” to be “whether the rejection of the offer was unreasonable in the circumstances”.[7]  He continued:

“Fourthly, a court considering submissions that the rejection of a Calderbank offer was unreasonable should ordinarily have regard at least to the following matters:

(a) the stage of the proceeding at which the offer was received;

(b) the time allowed for the offeree to consider the offer;

(c) the extent of the compromise offered;

(d) the offeree’s prospects of success, assessed as at the date of the offer;

(e) the clarity with which the terms of the offer were expressed; and

(f)whether the offer foreshadowed an application for indemnity costs in the event of the offeree rejecting it.”[8]

[6] [2012] VSC 414 at paragraph [62]

[7]         (Ibid) at paragraph [61]

[8]         (Ibid) at paragraph [62]

11In relation to this application, determining whether Mr Long’s rejection of the offer was unreasonable in the circumstances requires consideration of the following questions:

(a)   Was the offer more favourable than the judgment?

(b)   Was the offer open for a reasonable period?

(c)   Did the offer foreshadow an application for indemnity costs in the event of the defendant rejecting it?

(d)   What is the relevance of the defendant’s lack of legal representation?

(e)   Would there be an element of double punishment in awarding indemnity costs?

Was the offer on 6 August 2024 more favourable than the judgment?

12The effect of the offer was that Mr Page would accept payment of the sum of $100,000 within 14 days to settle the proceeding, with there to be no order as to costs.  Mr Long was also required to consent to judgment for the settlement sum if he did not pay the amount within 14 days.[9]  

[9]        Affidavit of Mr Lane-Porter at pages 7-10

13The Judgment granted Mr Page damages of $120,000.  In addition to this sum, Mr Page is entitled (at least) to his costs of the proceeding on a standard basis.  By the time of the offer (which was about a month prior to trial), Mr Page’s legal costs would have been significant.  The offer to accept $100,000 with no order as to costs was substantially more favourable than the Judgment.

Was the offer open for a reasonable period?

14The offer was open for a period of seven days.

15In considering whether the offer was open for a reasonable period of time, I may have regard to:

“… the extent to which the offeree might reasonably be thought to have fully understood the claims and evidence in a proceeding and been able to assess its position in a fully informed and considered manner. … .”[10]

[10]Igo Mischel (as Executor of the Estate of Maria Mischel) v Mischel Holdings Pty Ltd (in liq) (No 2) [2012] VSC 421 at paragraph [34]

16The offer was made just over one month before the beginning of the trial.  By this stage almost all pre-trial steps had been completed.  Further, Mr Long had (with the assistance of his lawyers) sent an offer of compromise in March 2024.  It is reasonable to assume he had informed himself in relation to the issues and risks of the proceeding prior to sending this offer.

17I am satisfied the offer was open for a reasonable period of time considering the proximity to the trial, the completion of pre-trial steps and Mr Long’s previous sending of an offer of compromise with the assistance of his lawyers.

Did the offer foreshadow an application for indemnity costs in the event of Mr Long rejecting it?

18The offer foreshadowed Mr Page’s right to apply for an order for indemnity costs to be awarded in his favour on the grounds that failure to accept the offer was imprudent and/or unreasonable.[11]

[11]        Affidavit of Mr Lane-Porter at page 10

What is the relevance of Mr Long’s lack of legal representation?

19The fact Mr Long was not represented by a lawyer during the period the offer was open for acceptance is relevant to the question of whether it was unreasonable for him not to accept the offer.

20However, although not a lawyer, Mr Long is a qualified teacher.  There is no evidence to suggest he would not be able to understand the meaning of the offer.  The offer explains that Mr Page would be seeking exemplary damages against Mr Long, which could be more than $70,000.  It explains that Mr Page had photographic evidence of Mr Long on the property.  As explained in the Judgment, photos of Mr Long on the property provided “convincing evidence that Mr Long was on the Ranch sometime shortly before 19 December 2019”.[12]  It explains that, if Mr Long did not accept the offer, Mr Page may rely on the letter to apply for an order for indemnity costs.

[12]        Reasons for Judgment delivered 27 June 2025 at paragraph [63]

21Further, Mr Long was represented in the proceedings until 15 July 2024.  In March 2024, his then lawyers sent an offer of compromise on his behalf.  As I have already noted, it is reasonable to assume that, by that stage, he had informed himself as to the risks of the proceeding.

22I am satisfied it was unreasonable of Mr Long not to accept the offer, notwithstanding the fact he was not represented by a lawyer during the period the offer was open for acceptance.

Would there be an element of double punishment in awarding indemnity costs?

23The special costs order sought by Mr Page is specifically limited to the period on and from 13 August 2024, and specifically in reliance on Mr Long’s unreasonable failure to accept the offer.  Mr Page does not rely upon:

(a)   any conduct of Mr Long in committing the trespasses which led to the Judgment; or

(b)   any other conduct of Mr Long in defending the proceeding.

24I accept there was a punitive element to the damages award given in the Judgment.  I also accept there is a punitive element to an indemnity costs order.  However, the making of an indemnity costs order because of Mr Long’s unreasonable failure to accept the offer, does not involve double punishment.  It addresses different conduct from that addressed by the Judgment.  

25Further, Mr Long’s assertions as to his financial position do not tell against the making of an indemnity costs order.  Even if the Judgment were more than Mr Long’s current assets, Mr Page is entitled to access available enforcement and bankruptcy provisions.

Conclusion

26I am satisfied it was unreasonable of Mr Long not to accept the offer, and that it is appropriate, in all the circumstances, to order him to pay Mr Page’s costs of the proceeding:

(a)   on a standard basis to 13 August 2024, to be taxed in default of agreement; and

(b)   on an indemnity basis on and from 13 August 2024, to be taxed in default of agreement.

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