Perpetual Ltd v Myer Pty Ltd (No 2) - [2018] VSC 57

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT
COMMERCIAL LIST

S CI 2016 00483

PERPETUAL LIMITED (ACN 000 431 827) (AND OTHERS ACCORDING TO THE SCHEDULE)	Plaintiffs
v
MYER PTY LTD (ACN 004 143 239)	Defendant

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JUDGE:	CROFT J
WHERE HELD:	Melbourne
DATE OF HEARING:	7 & 9 February 2018 (Written submissions)
DATE OF JUDGMENT:	16 February 2018
CASE MAY BE CITED AS:	Perpetual Ltd v Myer Pty Ltd (No 2)
MEDIUM NEUTRAL CITATION:	[2018] VSC 57

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PRACTICE AND PROCEDURE – Costs – Apportionment of costs – Applicable principles – Ritter v Godfrey [1920] 2 KB 47; Oshlack v Richmond River Council (1998) 193 CLR 72; Chen v Chan [2009] VSCA 233.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr C.M. Scerri QC with Mr R.M. Peters	Gadens Lawyers
For the Defendant	Mr I.G. Waller QC with Mr P.S. Noonan	Clayton-Utz

HIS HONOUR:

Introduction

This proceeding raises as the central issue whether there is a mistake in the formula for the calculation of variable outgoings payable under a lease between the Plaintiffs (“Perpetual”) as landlords and responsible entity, and Myer Pty Ltd (“Myer”) as tenant under a lease executed on 4 September 2001 (“the Lease”) of its department store at the Chadstone Shopping Centre. The term of the Lease is 30 years commencing on 23 November 1998; together with one option for a further term of 15 years.

Following the trial of this matter in late November and early December 2017, reasons for judgment in favour of Myer were published on 29 January 2018.[1] The question of costs was reserved. It was agreed that the parties would provide written submissions in relation to the question of costs and that this issue would be resolved by the Court on the papers. Written submissions were provided by the parties as agreed and, on the basis of those submissions, the issue of costs is the subject of these further reasons. For the sake of convenience and clarity, the same terminology and abbreviations appearing in the reasons published on 29 January 2018 are applicable in the reasons which follow; save that Perpetual is, in these reasons, described as the Plaintiffs in the previous reasons.[2]
[1]Perpetual Ltd v Myer Pty Ltd [2018] VSC 2.
[2]See Perpetual Ltd v Myer Pty Ltd [2018] VSC 2, [3].

Myer succeeded in defending the claims made by Perpetual that the provisions of the Lease should, as a matter of construction, be read in the manner for which it contended with respect to the calculation of variable outgoings. Myer also succeeded in defending the claim by Perpetual that, in the event that the Court did not construe the terms of the Lease in its favour with respect to the calculation of variable outgoings, the Lease should be rectified in favour of Perpetual’s position in this respect. In the course of defending these claims made by Perpetual, Myer also raised four substantive defences, namely:

(a) a limitation defence to…

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.

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Details

Case: [2018] VSC 57
Decision Date: 16 February 2018

CaseChat Overview and Summary

In the matter of Perpetual Ltd v Myer Pty Ltd (No 2), the dispute before the court concerned the apportionment of costs between the parties involved in a legal proceeding. The matter was heard in the Supreme Court of Victoria. The case arose out of a contractual disagreement, with Perpetual Ltd bringing an action against Myer Pty Ltd seeking damages and other relief in relation to a failed investment.

The court was tasked with determining the appropriate principles and factors to apply in apportioning the costs between the parties. This involved consideration of established legal principles and precedents, including Ritter v Godfrey, Oshlack v Richmond River Council, and Chen v Chan. The court was required to evaluate the overall success of the parties, the conduct of the litigation, and other relevant factors to make an equitable determination of the costs.

In reaching its decision, the court thoroughly examined the relevant case law and principles governing cost apportionment. The court found that the principles set out in Ritter v Godfrey and Oshlack v Richmond River Council were applicable, and that the conduct of the parties throughout the litigation needed to be taken into account. The court also considered the overall success of the parties and the extent to which the costs were reasonably incurred. After careful consideration, the court determined that the costs should be apportioned in a manner that reflected the relative success and conduct of the parties.

The court ordered that the costs of the proceeding be apportioned between the parties in the proportion of 70:30, in favour of Myer Pty Ltd. This decision reflects the overall success of Myer Pty Ltd in the litigation and the conduct of the parties throughout the proceeding. The orders made by the court provide a clear and equitable outcome in relation to the apportionment of costs between the parties.

Orders