Taylor v Harrison (Costs)

[2022] VCC 380

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMERCIAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CI-20-02489

DAVID BRUCE TAYLOR	Plaintiff
v
KATE ELIZABETH HARRISON	Defendant

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JUDGE:	HER HONOUR JUDGE MARKS
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers – written submissions received from the parties on 15 March 2022
DATE OF RULING:	28 March 2022
CASE MAY BE CITED AS:	Taylor v Harrison (Costs)
MEDIUM NEUTRAL CITATION:	[2022] VCC 380

RULING
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PRACTICE AND PROCEDURE – COSTS – distinct claims made in proceeding –  defendant successful on some claims, unsuccessful on the others – whether costs should be apportioned – Hancock v Rinehart (Costs) [2016] NSWSC 11 – general discretion on costs – costs apportioned – turns on own facts

PRACTICE AND PROCEDURE – COSTS – CALDERBANK OFFER – whether plaintiff unreasonably rejected defendant’s offer – whether defendant entitled to indemnity costs as a result – offer not unreasonably rejected – no indemnity costs.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr Luke Virgona	Fischer McCrae Lawyers
For the Defendant	Mr James McKay	Prior Law

HER HONOUR:

1On 17 December 2021, I delivered judgment in this proceeding: Taylor v Harrison [2021] VCC 2097 (the judgment). This decision follows from the judgment, and concerns the costs order that should be made in the proceeding. It raises issues of whether costs should be apportioned, and the effect of a Calderbank offer.

Apportionment of costs

2In the judgment, I found that Harrison had acquired title by adverse possession of part of Taylor’s land (Parcel B). I also found that Harrison was entitled to a drainage easement over part of Taylor’s land.

3The parties dispute the appropriate order as to costs.  Taylor submits that costs should be apportioned, as he was successful on a number of issues. He submits that an appropriate portion of Harrison’s costs for him to be liable for would be in the range of 35-50%.  Harrison, on the other hand, wants all her costs.  She submits that she was substantially successful.  She says she was entirely successful on the claim and substantially successful on the counterclaim. She seeks her costs of the claim and counterclaim on the standard basis or to have Taylor pay 75% of Harrison’s costs of the counterclaim (or such other percentage as the court may determine in its discretion) on the standard basis.

4I consider this is a matter that calls for there to be an apportionment of costs.

5If Harrison had simply pursued the adverse possession claim and the drainage easement claim, on which she was successful, she would have been entitled to all of her costs in this proceeding. 

6I do not consider that given all the claims made, however, Harrison can be described as ‘substantially successful’.

7Harrison was successful in relation to one of her three claims for adverse possession and one of her two easement claims. She is entitled to costs in relation to them.

8I also take into account the estoppel claim which Taylor made and abandoned in the course of trial. Harrison is entitled to costs in relation to defending that.

9However, Harrison was unsuccessful in relation to her adverse possession claim over Parcel C, and her claim for an easement of support. She abandoned her claim for adverse possession over Parcel D in the course of trial. She did not obtain Declarations F and G (as claimed in her counterclaim). All issues were strongly contested. The issues were substantially separate, although some of the facts relating to the successful adverse possession claim were necessary to understand the other adverse possession claims. Taylor is entitled to some costs given his success on these issues.

10Harrison argued that she enjoyed some degree of success in relation to her claim for an easement of support. That is because, although I have found that an easement of support was established, I declined to exercise my discretion and make a declaration in the circumstances.

11Harrison submits:

… Harrison also enjoyed some success on the easement of support claim, because the Court made findings confirming that Harrison had established an easement of support over the area previously occupied by the brick wall, and found that Taylor had violated that right.  That finding has established a property right that was denied by Taylor.  As was said by Dixon J in Blair v. Curran [(1939) 62 CLR 464 at 531. ‘Privies’ includes privies by title: see Ramsay v. Pigram (1968) 118 CLR 271 at 279]:

A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies.

The Court refused declaratory relief respecting the easement of support because of ‘the acrimonious nature of the relationship between the parties, and the difficulties of arranging access to facilitate reconstruction of a wall’.  Both parties are responsible for the deterioration in their relations, and the denial of relief on this basis should be seen as neutral, and should not operate in Taylor’s favour.  The reality is that a property right denied by Taylor was established by Harrison in a binding decision, and she has achieved some success on this issue even though the easement was not extended over the footings.

[some footnotes omitted].

12A claim is either successfully made or not. Here, a declaration was sought, and not granted. No other relief was sought or granted regarding the topic of that declaration.  It was not appropriate to grant a declaration for the reasons that I gave. It is not a question of whose fault it was that the relationship between the parties was acrimonious. It is simply a fact, that was part of the reason the declaration was not made. I will not allow Harrison any costs on this unsuccessful claim.

13Harrison submits that it is relevant that Taylor’s evidence was rejected by the Court.  Some of Taylor’s evidence was indeed rejected (though not all). It is not unusual for a court to reject a witness’s evidence or to fail to be satisfied that the witness in fact recalls all the things that the witness says he recalls. That of itself is not a reason that I consider should increase the amount of any costs order against a witness who is a party.

14Taking into account all of these matters, and taking a ‘broad brush’ approach, I consider it appropriate that Taylor pay Harrison 50% of her costs of the proceeding.

Calderbank offer

15Taylor sought an order that Harrison pay his costs of the proceeding from 12.55pm on 29 April 2021 on an indemnity basis.  This was due to a Calderbank offer made by him on 28 April 2021. He argued that it ought to have been accepted, and that it was unreasonable of Harrison not to accept it. 

16I am not satisfied that it was unreasonable of Harrison not to accept the Calderbank offer.

17The offer made included the construction of a fence between the properties which would have meant the land ceded to Harrison included all of Harrison’s successful adverse possession claim plus ‘land D’ plus an additional two centimetres. It also included acknowledgement of the drainage easement. In terms of the relief she sought, Harrison would have done better by accepting this offer than pushing on to a final judgment.  

18However, the offer included other elements.

19First, it included that each side bear their own costs. Yet even Taylor, in his costs submissions, has conceded that it is appropriate that Harrison be paid 35-50% of her costs. In those circumstances, I do not consider it unreasonable of Harrison to refuse an offer that gave her no costs. 

20Second, the Calderbank offer dealt with a Magistrates’ Court proceeding (in which the solicitors acting for Harrison were not briefed). The Court does not have the necessary information before it on which to base any finding that it was unreasonable to reject those aspects of the offer.

21In those circumstances, I do not consider it was unreasonable for it to be rejected. It follows that the making of that offer, and the fact it was not accepted, does not affect costs.

Order

22I will order that the plaintiff pay the defendant 50% of her costs of the proceeding, including the counterclaim, on the standard basis, to be taxed in the absence of agreement.

Certificate

I certify that these 5 pages are a true copy of the reasons for ruling of Her Honour Judge Marks, delivered on 28 March 2022.

Dated:  28 March 2022

Jack Rudman

Associate to Her Honour Judge Marks