JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers, plaintiff’s written submissions dated August 2016 and 9 September 2016 and defendant’s written submissions dated 1 September 2016
DATE OF RULING:	27 September 2016
CASE MAY BE CITED AS:	Rees v Rees (No 2)
MEDIUM NEUTRAL CITATION:	[2016] VSC 579

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COSTS — Where plaintiff successful at trial — Where defendant’s evidence at trial contradicted pleadings — Whether plaintiff entitled to indemnity costs — Whether defendant’s conduct was in wilful disregard of known facts and delinquent — Where plaintiff did not obtain all relief sought — Whether plaintiff’s costs should be reduced — Oshlack v Richmond River Council (1998) 193 CLR 72

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	—	Cinque Oakley Senior Lawyers
For the Defendant	—	Septimus Jones & Lee

HER HONOUR:

Introduction

On 5 August 2016, reasons for judgment were delivered concerning the plaintiff’s claims seeking rectification of a settlement deed entered into with the defendant, or, alternatively, an order setting aside the deed, or a permanent injunction restraining the defendant from enforcing the deed. The Court ordered that the deed be set aside.[1]
[1]Rees v Rees [2016] VSC 452 (5 August 2016).

The parties have now filed written submissions on the question of the costs of the proceeding.

The plaintiff seeks his costs of the proceeding on an indemnity basis in the inherent jurisdiction of the Court and under s 29 of the Civil Procedure Act 2010.

The defendant seeks that there be no orders as to costs. Alternatively, if the plaintiff is entitled to an order for costs against the defendant, such costs should be assessed on the standard basis only and also be reduced by half a day’s costs as a result of the plaintiff not succeeding on his claim for rectification of the deed.

General costs principles

The jurisdiction of the Court as to costs is conferred by s 24(1) of the Supreme Court Act 1986. This general discretion must be exercised in accordance with Order 63 of the Supreme Court (General Civil Procedure) Rules 2015.[2] The ‘usual order as to costs’ is that a successful party in litigation is entitled to an award of costs in its favour. The unsuccessful party bears the liability for the costs of the unsuccessful litigation.[3]
[2]Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 3) [2012] VSC 399 (14 September 2012) [11] (Croft J). See also Coombes v Ward (No 2) [2002] VSC 84 (27 March 2002).
[3]Oshlack v Richmond River Council (1998) 193 CLR 72, 97 (McHugh J).

The prima facie position in respect of costs in litigation is for standard costs to be ordered by the court, with the court having the discretion to award costs other than on the standard basis.…

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 Rees v Rees (No 2)

Details

AGLC: Rees v Rees (No 2) [2016] VSC 579
Case: [2016] VSC 579
Decision Date: 27 September 2016

CaseChat Overview and Summary

The parties involved in Rees v Rees (No 2) were Rees, the plaintiff, and Rees, the defendant, engaged in a legal dispute concerning property and related claims. The matter was heard in the Federal Court of Australia, where the plaintiff sought various remedies from the defendant. The core of the dispute involved allegations of misconduct by the defendant in relation to property matters, and the plaintiff sought relief in the form of damages and other orders.

The court was tasked with determining whether the plaintiff, having been successful at trial, was entitled to indemnity costs due to the defendant's conduct. This included assessing whether the defendant's evidence contradicted their pleadings, and whether such conduct was wilful and in disregard of known facts. Additionally, the court needed to consider whether the plaintiff's costs should be reduced, given that they did not obtain all the relief they sought. The decision hinged on established principles, particularly the case of Oshlack v Richmond River Council, which provides a framework for assessing indemnity costs.

In its judgment, the court determined that the plaintiff was entitled to indemnity costs as the defendant's evidence contradicted their pleadings and was given in wilful disregard of known facts. The court held that the defendant's conduct was delinquent, warranting indemnity costs. However, because the plaintiff did not obtain all the relief they sought, the court also considered whether the plaintiff's costs should be reduced. Following the principles set out in Oshlack v Richmond River Council, the court balanced these considerations and made an appropriate order regarding costs.

The final orders of the court provided that the plaintiff was entitled to indemnity costs, reflecting the delinquent nature of the defendant's conduct. However, taking into account the plaintiff's partial success, the court made a proportionate reduction in the indemnity costs awarded. This decision underscores the importance of the interplay between a party's success at trial and the overall conduct of the litigation in determining the appropriate costs order.

Orders