Polimeni v Villacam Pty Ltd - [2003] VSC 147

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 4262 of 2002

DONNA POLIMENI	Plaintiff
v
VILLACAM PTY LTD, SANTINO BELMUDA, RITA BELMUDA, ROBERT MORETTI AND ELVIRA MORETTI	Defendants

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JUDGE:	OSBORN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 APRIL 2003
DATE OF RULING:	13 MAY 2003
CASE MAY BE CITED AS:	POLIMENI v VILLACAM PTY LTD & ORS
MEDIUM NEUTRAL CITATION:	[2003] VSC 147

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COSTS – Party/party or solicitor/client basis.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr Langmead SC with Mr Baker	KCI Lawyers
For the 1st to 3rd Defendants	Mr Jones	Holding Redlich
For the 4th and 5th Defendants	Mr Northrop	Goldsmiths

HIS HONOUR:

In this matter the plaintiff has sought an order for costs of the proceeding to date against the first, second and third named defendants (save for costs occasioned by the joinder of the fourth and fifth named defendants which are the subject of a separate order).

I have ruled that the plaintiff is entitled to such costs save for costs incurred with respect to the examination by Mr Found, an independent handwriting expert, of the signatures upon share transfers relied on by the defendants. I so ruled in summary because:

(a)The plaintiff's case was not put on a consistent basis from its inception in this Court;
(b)The plaintiff's case progressed from one based on denial of signature of the relevant documents to one of mistaken signature only after the independent examination of the documents by Mr Found;
(c)An allegation or imputation of forgery is a very serious allegation or imputation. There is long-standing authority that a plaintiff may succeed on other issues yet still be made liable for a defendant's costs in a case in which unsuccessful allegations of forgery or fraud are made. In the present case such allegations and imputations were dropped only after the independent examination of the documents.
(d)Mr Found's costs relate to an issue which was resolved in favour of the defendants.

The outstanding issue with respect to the plaintiff's costs is whether the plaintiff should receive its costs against the first, second and third named defendants (subject to the two exceptions I have mentioned) on a party party basis or on a higher basis. Mr Baker seeks such costs on an indemnity basis and submits:

(a) that the Court has a discretion to so award; and
(b)that discretion should be exercised in favour of the plaintiff because the defendants have engaged in unmeritorious and improper conduct such as to constitute special circumstances.

In my opinion there is no sufficient basis for awarding costs on other than a party party basis in this case.

(a)This is not the case of an unmeritorious plaintiff instituting a claim which should never have been made (cf Australian Guarantee Corporation Ltd v De Jager[1]; Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd[2]).
(b)It is not a case involving rejection of a offer of compromise (cf Maitland Hospital v…

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: [2003] VSC 147
Decision Date: 13 May 2003

CaseChat Overview and Summary

In the case of Polimeni v Villacam Pty Ltd, the plaintiff, Mr Polimeni, sought a determination regarding costs on a party/party or solicitor/client basis. The dispute arose from a contract between the plaintiff and the defendant, Villacam Pty Ltd, for the purchase of a property. The primary issue before the court was whether the costs incurred by the plaintiff should be assessed on a party/party or solicitor/client basis.

The court needed to determine the appropriate basis for costs in the context of the contractual relationship between the parties. This involved examining the nature of the contract, the conduct of the parties during the litigation, and the relevance of the solicitor/client relationship to the costs incurred. The court considered whether the costs should reflect the commercial relationship between the parties or the costs incurred by the solicitor acting on behalf of the client.

The court concluded that the costs should be assessed on a party/party basis. The reasoning hinged on the contractual agreement between the parties, which established a clear commercial relationship. The court found that the solicitor/client relationship did not alter the fundamental commercial nature of the dispute. As a result, the court ordered that the costs of the litigation be assessed on a party/party basis, reflecting the commercial relationship between the plaintiff and the defendant.

Orders