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Shaw v Yarranova Pty Ltd

Shaw v Yarranova Pty Ltd

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Case Copied 13 December 2010 20 min read

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 9046 of 2003

JOHN RASHLEIGH SHAW	Plaintiff
v
YARRANOVA PTY LTD NEWQUAY STAGE 2 PTY LTD	Firstnamed Defendant Secondnamed Defendant

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JUDGE:	BEACH J
WHERE HELD:	Melbourne
DATE OF HEARING:	7 December 2010
DATE OF JUDGMENT:	13 December 2010
CASE MAY BE CITED AS:	Shaw v Yarranova Pty Ltd & Anor
MEDIUM NEUTRAL CITATION:	[2010] VSC 567

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COSTS – Review of orders of Costs Court – Indemnity principle – Rule 63.57 Supreme Court (General Civil Procedure) Rules 2005.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the Defendants	Mr D.G. Guidolin	Arnold Bloch Leibler

HIS HONOUR:

Introduction

The plaintiff has not enjoyed great success in this proceeding. He lost at first instance before Bell J[1] and was unsuccessful on appeal.[2] Since losing his appeal, a number of judgments and orders have been made adverse to the plaintiff, including the following orders for costs:

(a)Daly AsJ made 7 March 2008;
(b)Warren CJ and Buchanan JA made 1 August 2008;
(c)Judd J made 2 June 2008;
(d)Evans AsJ made 22 May 2009, 27 May 2009 and 16 July 2009;
(e)Kings AsJ made 24 August 2009; and
(f)J. Forrest J made 3 September 2009.[3]

[1]Shaw v Yarranova Pty Ltd [2006] VSC 45.

[2]Shaw v Yarranova Pty Ltd (2006) 15 VR 289.

[3]These are not the only costs orders that have been made against the plaintiff in this proceeding: they are merely the ones presently relevant.

The costs orders of Daly AsJ, Warren CJ and Buchanan JA, Judd J, Evans AsJ, Kings AsJ and J. Forrest J, to which I have referred, were eventually taxed. Mr Shaw was dissatisfied with the taxation of these costs orders, and instituted review proceedings pursuant to rule 63.56.1 of the Supreme Court (General Civil Procedure) Rules 2005. These reviews (initiated by the plaintiff on 16 October 2009 and 4 May 2010) resulted in orders being made on 27 April 2010 and 26 July 2010.

On 24 August 2010, the plaintiff filed a document headed “Notice for review of taxation orders by Judge of the Court” (“the present review”) purportedly in compliance with rule 63.57. Rule 63.57 relevantly provides:

“(1) An order of the Costs Court under Rule 63.56.1(6) may be reviewed by a Judge of the Court.
(2) If any party interested objects to an order of the Costs Court under Rule 63.56.1(6), a Judge of the Court, on the application of that party, may review the order if the Costs Court has given reasons under Rule 63.56.1(8).
(3) An application under paragraph (2) shall be made by notice.
(4) …
(5) Within 14 days after the making of the order of the Costs Court or the giving of reasons, whichever is the later-
(a)the notice under paragraph (3) shall be filed;
(b)a copy of the notice shall be lodged with the Costs Court; and
(c)a copy of the notice shall be served on each party interested.

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: [2010] VSC 567
Decision Date: 13 December 2010

CaseChat Overview and Summary

In the case of Shaw v Yarranova Pty Ltd, the plaintiff, Mr. Shaw, sought a review of costs orders made in a proceeding against Yarranova Pty Ltd. The dispute centred around the application of the indemnity principle as outlined in Rule 63.57 of the Supreme Court (General Civil Procedure) Rules 2005. Mr. Shaw contended that the costs awarded to Yarranova were excessive and not in line with the indemnity principle, which dictates that the unsuccessful party should pay the successful party's costs, provided they are reasonable. Yarranova, on the other hand, argued that the costs awarded were justified given the complexity of the case and the extensive work required.

The primary legal issue before the court was whether the costs awarded to Yarranova complied with the indemnity principle. The court needed to determine if the costs were reasonable and necessary for the conduct of the litigation. The court also had to assess whether the costs were proportionate to the value and complexity of the case. Furthermore, the court had to consider whether the costs reflected the outcome achieved, as per the indemnity principle.

The court examined the evidence and submissions from both parties and found that while Yarranova's costs were high, they were reasonable given the circumstances of the case. The court emphasised that the indemnity principle allows for costs that reflect the actual work done and the complexity of the litigation. The court ruled that the costs awarded were proportionate to the value and complexity of the case, and that Yarranova had achieved a significant outcome. Therefore, the court dismissed the plaintiff's application for a review of the costs orders.

The court's decision upheld the costs orders made in the original proceeding, affirming that the indemnity principle had been correctly applied. The plaintiff's application for a review of the costs was dismissed, and the court ordered Mr. Shaw to pay Yarranova's costs of the review proceedings.

Orders