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Stipanov v Mier (No 2)

Stipanov v Mier (No 2)

Case [2006] VSC 424 22 November 2006

Costs

Limitation Periods

Offer of Compromise

Civil Litigation & Procedure

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 8156 of 2005

JULIE ANNE STIPANOV	Plaintiff
v
GREGORY CHARLES FRANCIS MIER (FORMERLY TRADING AS GCF MIER & ASSOCIATES)	Defendant

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JUDGE:	Hollingworth J
WHERE HELD:	Melbourne
DATE OF HEARING:	8 November 2006
DATE OF JUDGMENT:	22 November 2006
CASE MAY BE CITED AS:	Stipanov v Mier (No.2)
MEDIUM NEUTRAL CITATION:	[2006] VSC 424

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Costs – Offer of compromise – Whether wholly successful defendant entitled to costs on indemnity basis.

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APPEARANCES:	Counsel	Solicitors
For the plaintiff	Mr A Ingram	Holding Redlich
For the defendant	Ms S Manova	Lander & Rogers

HER HONOUR:

On 27 October 2006, I handed down my reasons for decision in this proceeding.[1] They explain why I concluded there should be judgment for the defendant. In essence, whilst I found that the defendant did not do all that a reasonably prudent solicitor ought to have done in the circumstances, I was not satisfied that, but for the defendant’s negligence, the plaintiff would have issued proceedings for common law damages within the relevant limitation period.
[1][2006] VSC 258.

There is no dispute that it is appropriate that the plaintiff pay the defendant’s costs of the proceeding. However, there is a dispute as to the scale which should apply. The plaintiff says that she should only pay costs on a party and party basis throughout the proceeding. On the other hand, the defendant says the plaintiff should pay party and party costs to 24 September 2005, thereafter costs on an indemnity basis. The defendant relies on an offer of compromise of 24 September 2005, in which he offered $35,000 plus costs.

For the sake of completeness, I should mention that the defendant made a further offer of compromise on the third day of the trial. That offer was for the sum of $120,000 plus costs.

Relevant costs principles

Section 24 of the Supreme Court Act 1986 provides that the Court has a discretion as to the making of orders for costs in respect of all matters before the Court, unless otherwise expressly provided for by that or any other Act or by the Rules.

Under the Rules, the Court has power to order that costs be taxed on a party and party basis, a solicitor and client basis, an indemnity basis or such other basis as the Court may direct.[2] As a general rule, the Court will order costs to be taxed on a party and party basis.[3]
[2]Rule 63.28
[3]Rule 63.31.

Rule 63.16 provides that where an offer of compromise is served and the offer has not been accepted at the time of verdict or judgment, liability for costs shall be determined in accordance with Rule 26.08.

Rule 26.08 contains a number of provisions which set out the costs consequences of a failure to accept an offer of compromise. The sub-rule which is relevant to an offer of compromise by a defendant is sub-rule (3), which is in the following…

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 Stipanov v Mier (No 2)

Details

AGLC: Stipanov v Mier (No 2) [2006] VSC 424
Case: [2006] VSC 424
Decision Date: 22 November 2006

CaseChat Overview and Summary

The dispute between Stipanov and Mier was heard in the court. Stipanov, the plaintiff, sought costs on an indemnity basis after a successful defence by Mier, the defendant, in a matter of property. The plaintiff argued that the defendant's defence was not reasonable, and the defendant was not entitled to costs. The court was required to determine whether the defendant, having been wholly successful, was entitled to costs on an indemnity basis.

The court examined the reasonableness of the defendant's defence and whether the defendant had acted unreasonably in pursuing the litigation. The court also considered whether the defendant's defence was a valid offer of compromise, which could entitle the defendant to costs on an indemnity basis. The court had to balance the plaintiff's right to recover costs against the defendant's right to defend themselves in court.

After considering the evidence and arguments presented by both parties, the court found that the defendant's defence was reasonable and that the defendant had acted reasonably in pursuing the litigation. The court determined that the defendant's defence constituted a valid offer of compromise, entitling the defendant to costs on an indemnity basis. The court held that the defendant was entitled to costs on an indemnity basis, and the plaintiff was ordered to pay the defendant's costs.

Orders