| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 10147 of 2005
| ROADS CORPORATION | Plaintiff |
| v | |
| THOMAS JAMES LOVE | Respondent |
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JUDGE: | OSBORN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 February 2010 | |
DATE OF JUDGMENT: | 23 April 2010 | |
CASE MAY BE CITED AS: | Roads Corporation v Love | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 154 | |
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LAND COMPENSATION – Costs of disputed claim – General principles – Non-applicability of rules relating to offers of compromise – Potential relevance of Calderbank offer – Issues based awards of costs – Costs consequent upon refusal of Calderbank offer – Special award of costs – Incidental questions of costs – Three counsel – Reserved costs – Costs of transcript – Mediation order – Section 91 Land Acquisition and Compensation Act 1986.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C. J. Delany SC with Mr S. Goubran | Garland Hawthorn Brahe |
| For the Defendant | Mr D. O’Brien with Mr A. Fraatz | McCluskys Lawyers |
TABLE OF CONTENTS
Introduction........................................................................................................................................ 2
General principles............................................................................................................................. 6
The relevance of ‘secret offers’........................................................................................................ 8
Should each of the parties receive an award of costs in the present case and, if so, in respect of what aspects of the proceeding?.................................................................................................... 16
Should costs be awarded on a special basis?.............................................................................. 19
Further submissions of counsel.................................................................................................... 24
Incidental questions of costs......................................................................................................... 25
HIS HONOUR:
Introduction
I have given judgment in this matter assessing compensation in the sum of $444,334.92 calculated having regard to the following components:
(a)
market value
$310,000
(b)
special value
$72,655
(c)
disturbance
$782
(d)
solatium
$30,000
Total
Say
$413,437
$414,000
Plus agreed professional expenses
$30,334.92
TOTAL
$444,334.92
Interest has been agreed in the sum of $188,020.64 as at 26 February 2010 and thereafter until payment of the principal sum at the daily rate of $50.44.
The remaining issue is the question of costs. The Corporation seeks orders that the Corporation pay Mr Love’s costs of the proceeding up to 15 November 2007 on the party‑party scale and that Mr Love pay the Corporation’s costs of the proceeding from 16 November 2007 on the solicitor‑client scale. It seeks a further order that the Corporation’s costs include three counsel, transcript and all reserved costs. It also seeks an order for the Corporation’s costs of, and incidental to, the application for costs heard on 26 February 2010 on the party‑party scale.
Mr Love submits that he should receive his costs of the proceeding up until 17 April 2009 on a party‑party basis but because:
(a) Mr Love’s success at trial was, when compared to the Corporation’s offer of 17 April 2009, only marginal; and
(b) Mr Love failed in the very substantial claims which were, in effect, the reasons for the matter proceeding to trial;
Mr Love ought to pay on a party‑party basis 80 per cent of the costs of the Corporation for the trial of the proceeding and the Corporation ought pay on a party‑party basis 20 per cent of Mr Love’s costs…
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- Case
- [2010] VSC 154
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CaseChat Overview and Summary
The primary legal issues before the court were the principles governing the costs of a disputed compensation claim, specifically whether the rules concerning offers of compromise could be applied in this context. Additionally, the court considered the potential relevance of a Calderbank offer, a well-known legal principle allowing parties to make offers without prejudice to avoid costs if the offer was ultimately accepted. The court also examined the appropriateness of an issues-based award of costs, the consequences of rejecting a Calderbank offer, and the special award of costs for the proceedings' complexity and the involvement of three counsel. The court further deliberated on the costs of the transcript, the impact of a mediation order, and the application of section 91 of the Land Acquisition and Compensation Act 1986.
In its reasoning, the court held that the general principles governing offers of compromise did not apply to the compensation claim. However, it acknowledged the potential relevance of a Calderbank offer in assessing costs. The court awarded costs based on the issues raised in the case, highlighting the significant refusal of a Calderbank offer as a factor. The special award of costs recognised the complexity of the proceedings and the need for three counsel. The court also addressed the costs of the transcript, the mediation order, and the applicability of section 91 of the Act. Ultimately, the court made an order in favour of Love, awarding costs under the outlined principles.
The final orders included a detailed breakdown of costs, reserving certain aspects for future determination, and addressing the incidental questions of costs, including those related to the transcript and mediation. The court also confirmed the applicability of section 91 of the Act in the context of the proceedings.
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Background
Background to the litigation
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Evidence Before The Court
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Legal Principle Established
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