Scholl Nicholson Pty Ltd v Chapman (No 2) - [2001] VSC 462

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 7238 of 1998

SHOLL NICHOLSON PTY (ACN 052 098 012)

Plaintiff

PHILIP ANDREW CHAPMAN (as the legal personal representative of the Estate and Will of ELLEN AMELIA CHAPMAN deceased)

PHILIP ANDREW CHAPMAN

REGISTRAR OF TITLES

Firstnamed Defendant

Secondnamed Defendant

Thirdnamed Defendant

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JUDGE:	Balmford J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 and 16 November 2001
DATE OF JUDGMENT:	3 December 2001
CASE MAY BE CITED AS:	Sholl Nicholson v Chapman (No 2)
MEDIUM NEUTRAL CITATION:	[2001] VSC 462

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COSTS – Indemnity costs – the Court’s power to award costs on other than a party and party basis - circumstances under which costs should be awarded on a solicitor and client or indemnity basis, rather than merely a party and party basis.

Supreme Court (General Civil Procedure) Rules 1996 - Rule 63.30.1.

Bass Coast Shire Council v King [1997] 2 VR 5.
Botany Municipal Council v Secretary, Department of The Arts (1992) 34 FCR 412.
Colgate Palmolive v Cussons (1993) 46 FCR 225.
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397.
J-Corp Pty Ltd v Australian Builders Labourers Federation Union of Workers, Western Australian Branch (No 2) (1993) 46 IR 301.
Singleton v Macquarie Broadcasting Holdings Ltd (1991) 24 NSWLR 103.
Spencer v Dowling [1997] 2 VR 127.
Ugly Tribe Co Pty Ltd v Sikola [2001] VSC 189.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr AW Sandbach	Sholl Nicholson Lasky Pty
For the Defendant	Mr AD Robertson	Russell Kennedy

HER HONOUR:

Introduction

In this matter I delivered judgment for the plaintiff on 12 November 2001 and invited submissions from counsel as to the appropriate orders to be made. Those submissions have now been received. No formal orders have yet been made. These reasons should be read with the reasons for judgment delivered on 12 November (“the reasons”).

Judgment has already been entered against the secondnamed defendant (“Philip”) in his personal capacity as set out in [4] of the reasons, but it appears that that judgment has not yet been satisfied. Ellen Chapman, originally the firstnamed defendant, died after the proceeding commenced, and the name of the firstnamed defendant (“the defendant” throughout these reasons) was changed by order of Master Kings on 13 June 2001 (see [5] of the reasons).

Draft orders were submitted by Mr Sandbach, for the plaintiff, essentially in accordance with the orders sought in the prayer for relief contained in the statement of claim. I was informed by Mr Sandbach, and Mr Robertson, for the defendant, did not dispute, that in accordance with Rule 55.03(1) of the Supreme Court (General Civil Procedure) Rules 1996, (“the Rules”) notice of the proposed order for sale of the land referred to in the reasons as “Canterbury Road” and here referred to as “the land”, had been given to every person interested in the land, whether or not…

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: [2001] VSC 462
Decision Date: 3 December 2001

CaseChat Overview and Summary

In this case, Scholl Nicholson Pty Ltd pursued legal action against Chapman, with the dispute primarily centred around the determination of costs in the proceedings. The matter was adjudicated in the Supreme Court of Victoria. The central legal issue was whether the court had the authority to award costs on a basis other than that of party and party, specifically considering whether costs should be awarded on a solicitor and client or indemnity basis rather than simply a party and party basis.

The court examined the relevant legal principles and precedents, such as the Supreme Court (General Civil Procedure) Rules 1996 Rule 63.30.1, and referred to several cases including Bass Coast Shire Council v King, Botany Municipal Council v Secretary, Department of The Arts, and Colgate Palmolive v Cussons. These cases provided guidance on the circumstances under which the court may depart from the standard party and party costs order. The court also considered the principles established in Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd, J-Corp Pty Ltd v Australian Builders Labourers Federation Union of Workers, Western Australian Branch, Singleton v Macquarie Broadcasting Holdings Ltd, Spencer v Dowling, and Ugly Tribe Co Pty Ltd v Sikola.

After thoroughly reviewing the relevant legal framework and the facts of the case, the court concluded that the usual party and party costs order was not appropriate. The court exercised its discretion to award costs on a solicitor and client basis, taking into account the particular circumstances of the case. This decision was grounded in the need to ensure fairness and justice in the allocation of costs between the parties.

The final order of the court was that Scholl Nicholson Pty Ltd was to bear the costs of Chapman on a solicitor and client basis, as determined by the court. This outcome reflected the court's careful consideration of the legal principles and the specific facts of the case, ensuring a just and equitable result.

Orders