Plain v Howard; Howard v Plain

[2004] VSC 540

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 6805 of 1999

PLAIN	Plaintiff
V
HOWARD & ORS	Defendant

No. 7287 of 1999

HOWARD & ANOR	Plaintiffs
v
PLAIN & ANOR	Defendant

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JUDGE:	Cummins J
WHERE HELD:	Melbourne
DATES OF HEARING:	28 October 2004
DATE OF RULING:	28 October 2004
CASE MAY BE CITED AS:	Plain v Howard & Ors (Costs Ruling No 1)
MEDIUM NEUTRAL CITATION:	[2004] VSC 540

COSTS RULING NO. 1

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Costs – party and party – indemnity.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	The plaintiff appeared in person
For the First – Fourth Defendants:	Mr L.M.F. Watts	Madisons
For the Fifth Defendant:	Mr J.W. Kewley	Ryrie Bridges
For the non-party:	Mr P.N. Crofts

HIS HONOUR:

1. I have before me three sets of applications which I will take in turn.  First, there is an application on behalf of the first four defendants for an order that the plaintiff, Mrs Carol Plain, pay the ordinary costs of the proceedings before this Court which the plaintiff lost in relation to the first four defendants.  The normal course in these courts on the civil side is that the party which loses the civil proceedings pays the costs.

1. Mrs Plain, most helpfully, has made submissions to me which were very well prepared and presented and in reply has further submitted that in any event she is in no position to pay any costs, let alone the costs of these substantial proceedings.

1. I consider that I should order against Mrs Plain that she pay the costs of the first four defendants of these proceedings, being ordinary party/party costs.  That is because, as I've said, the normal rule is that the losing party pays the costs.  Further, the normal rule is that that is made whether or not the party can afford to pay the costs, which is a matter of enforcement, not a matter normally of not making an Order.  Accordingly, I make the Order that Mrs Plain pay the costs of the first four defendants on a party/party basis of the proceedings.

1. Further I order that from 13 February 2002 costs on an indemnity basis are to be paid by Mrs Plain of the first four defendants because on that date, as appears in paragraph 10 of the affidavit of Mr Dunn, the learned instructing solicitor for the first four defendants, an offer of compromise was made and rejected by Mrs Plain.  Again, the normal rule is that if an offer of compromise reasonably is made and is rejected, then thereafter, in the interests of seeking to encourage reasonable and proper settlement of litigation, indemnity costs can be awarded and in this case I consider they ought be awarded.

1. So, in relation to the first four defendants, I order that Mrs Plain pay their costs on solicitor/client basis of the proceedings, and from 13 February 2002 that she pay their costs on an indemnity basis. 

1. In relation to the fifth defendant, the Commonwealth Bank, the Commonwealth Bank seeks first its costs on a party/party basis against Mrs Plain, and secondly its costs on an indemnity basis.  Essentially, the indemnity basis as put by Mr Kewley is that the proceedings against the fifth defendant were demonstrably unsustainable and doomed to fail, misconceived and unfounded, and accordingly the indemnity principle ought be invoked because of the parlous legal basis of the proceedings against the defendant, the Commonwealth Bank.

1. I am not satisfied that indemnity costs ought to be awarded on that basis for the Bank.  It seems to me that the proceedings against the bank were not as parlous as Mr Kewley has submitted.  Further, I am not satisfied, in accordance with well known authority, that the proceedings against the Bank were taken for an ulterior motive or with wilful disregard of proper principle.  Accordingly, in relation to the Bank, I do not order indemnity costs. 

1. However, in relation to the Bank, I do order that the banks' party/party costs be paid by the plaintiff.  I am satisfied that the costs were properly incurred.  I am satisfied that learned counsel and instructing solicitor, when they did attend the Court, did so on a proper and needful basis.  I am certainly not satisfied that either learned counsel or instructor attended Court on a gratuitous or unnecessary basis, given the complex nature of this litigation.  Accordingly I order that the plaintiff pay the costs on a party/party but not an indemnity basis of the fifth defendant.

1. As to Mrs Plain's applications for costs, both in relation to any party here or in relation to her own former counsel, Mr Cook, I am entirely unpersuaded that I ought to make any order of the kind sought by Mrs Plain.  She was unfortunately the losing party to the litigation and for the reasons I have stated the ordinary costs consequences ought follow. 

1. In relation to her own counsel, Mr Cook, he laboured long and hard on her behalf.  I am sorry to see that the situation between client, solicitor and counsel has deteriorated since the proceedings to the extent that it apparently has, but in any event I am entirely unsatisfied that counsel who laboured so long and hard on behalf of the client ought to be visited with any costs of the client after the event.  Accordingly, I refuse the application of Mrs Plain in relation to Mr Cook and any other application she makes for costs. 

1. Thus the bottom line is, in relation to Mrs Plain, she is ordered to pay the party/party costs of the first four defendants of the proceedings, the indemnity costs of the first four defendants from 30 February 2002, the party/party costs of the fifth defendant of the proceedings, and I refuse any other orders that she seeks in relation to those or any other persons.

1. In relation to Mr John Plain, I consider that personal service of the proceedings for costs against him ought to be effected before I hear any submissions.  That does not mean that I will accede to any submissions for costs against him, but it certainly does mean that he ought to be personally served so that I can be satisfied he knows the proceedings are on.  If he comes to Court, well and good, he's most welcome.  If he chooses not to come to Court, that is his decision, but at least he needs to be personally served so that I am satisfied, as the Judge, that he knows the proceedings are on.  Presently, therefore, I will adjourn the proceedings until 9.15 on Thursday 4 November 2004 against Mr John Plain and trust that personal service is effected upon him before that time and then we will proceed on that date.

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HIS HONOUR:        Mr Watts, are there any further matters?

MR WATTS:             No, Your Honour.

HIS HONOUR:        Mr Kewley?

Mr KEWLEY:           Only in relation to costs of today, Your Honour.

HIS HONOUR:        I order that the costs of the parties of today, on an ordinary party/party basis, be paid by Mrs Plain.

Mr KEWLEY:           Thank you, Your Honour.

Mr WATTS:              Just one further matter.  Mr Kewley and I both sought to contact Your Honour’s Associate this morning to determine that Your Honour was robing.

HIS HONOUR:        That is quite all right.  I’ve been elsewhere and that’s why I look like I do.  I am obliged to you and we will resume at 9.15 on Thursday, 4 November.

Mr KEWLEY:           Your Honour pleases,

ADJOURNED UNTIL THURSDAY 4 NOVEMBER 2004