Sharma v Parbhakar - [2015] VSC 632

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

S CI 2014 02617

SARITA SHARMA	Plaintiff
v
GAUTAM PARBHAKAR	Defendant

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JUDGE:	JOHN DIXON J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 March 2015
DATE OF JUDGMENT:	13 March 2015
CASE MAY BE CITED AS:	Sharma v Parbhakar
MEDIUM NEUTRAL CITATION:	[2015] VSC 632

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PRACTICE AND PROCEDURE – Costs – Whether costs should be taxed on an indemnity basis – Whether costs should be taxed immediately – Whether unsatisfactory conduct – s 18 Civil Procedure Act2010 (Vic), r 63.20.1, 63.28 Supreme Court (General Civil Procedure) Rules2005.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P Hayes	Russell Kennedy
For the Defendant	Mr T Mullen	Stephens Lawyers

HIS HONOUR:

The remaining applications that I have to deal with are firstly, whether the costs to be awarded in favour of the defendant should be taxed on an indemnity basis and secondly, whether I should order that those costs be taxed immediately.

Whether or not costs should be awarded on the more generous basis of assessment, as an indemnity, is in the discretion of the court. The principles upon which this discretion is exercised are well known and in essence, an applicant is required to demonstrate that the circumstances of the case are such that the standard basis for taxation of costs is not appropriate and that the exceptional jurisdiction of awarding indemnity costs over and above the ordinary basis for taxation should be invoked. Usually this is where the party has engaged in unmeritorious or deliberate or high-minded or other improper conduct or has commenced or continued a claim in circumstances where the plaintiff, had they been properly advised, should have known that it had no chance of success.

As Woodward J remarked in the Fountain Selected Meats[1] case, the seminal decision, commencing a proceeding where the applicant, properly advised, should have known it had no chance of success, gives rise to a presumption that the proceeding was commenced or continued for some ulterior motive or because of some wilful disregard of the known facts or the clearly established law.
[1]Re: Fountain Selected Meats (Sales) Pty Ltd [1988] FCA 364; 81 ALR 397.

I am not persuaded on the evidence that the plaintiff has commenced the proceeding in disregard of known facts, or the clearly established law. However, the proceeding was commenced on the basis of a publication alleged to have occurred on 9 June 2010 that resulted in a republication, by others, in or around September and October of 2013, leading to the commencement of the proceeding in 2014.

I have been taken, in some detail, through the correspondence between the parties about whether the allegations made in the original statement of claim. The defendant's solicitors on two occasions complained about the sufficiency of the allegations made in the statement of claim and received no response. The defendant’s solicitors then issued the summons dated 20 August 2014,…

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 Sharma v Parbhakar

Details

AGLC: Sharma v Parbhakar [2015] VSC 632
Case: [2015] VSC 632
Decision Date: 13 March 2015

CaseChat Overview and Summary

In the Supreme Court of Victoria, Sharma brought a claim against Parbhakar, seeking recovery of a debt. The matter was resolved by consent, and Sharma was awarded costs on an indemnity basis. Parbhakar sought to tax the costs immediately, arguing that Sharma's conduct was unsatisfactory and that the costs should be taxed on a standard basis. The primary legal issues before the court were whether Sharma's conduct was unsatisfactory, and if so, whether the costs should be taxed on a standard basis or an indemnity basis. The court found that Sharma's conduct did not amount to unsatisfactory conduct under section 18 of the Civil Procedure Act 2010. The court reasoned that, although Sharma had acted unilaterally in entering into the consent orders, this did not constitute unsatisfactory conduct. The court also held that the costs should be taxed on an indemnity basis and should not be taxed immediately. The court concluded that the parties had agreed to the indemnity basis of costs in their settlement agreement, and there was no basis to depart from that agreement. The court further found that the costs should not be taxed immediately, as the parties had not agreed to immediate taxation and there were no exceptional circumstances that warranted immediate taxation. The court ordered that the costs be taxed on an indemnity basis and that the costs be taxed in accordance with the usual procedure.

Orders