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Thomas v Powercor (No 9)

Thomas v Powercor (No 9)

Case [2012] VSC 207 18 May 2012

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT HORSHAM

COMMON LAW DIVISION

No. S CI 2009 09166

LAURENCE PETER THOMAS	Plaintiff
v
POWERCOR AUSTRALIA LIMITED	Defendant

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JUDGE:	BEACH J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 May 2012
DATE OF JUDGMENT:	18 May 2012
CASE MAY BE CITED AS:	Thomas v Powercor (No 9)
MEDIUM NEUTRAL CITATION:	[2012] VSC 207

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CONTRACT – Settlement agreement – Construction of agreement – Party-party costs of the proceeding to be taxed in default of agreement – Application for gross sum for costs instead of taxed costs – Application for increase of solicitors’ charges allowed on taxation of costs – Compromise approved by Court.

PRACTICE AND PROCEDURE – Costs – Power to allow increase in solicitors’ charges – Power to order gross sum instead of taxed costs – Supreme Court (General Civil Procedure) Rules 2005, rules 63.07 and 63.34.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr L.W.L. Armstrong with Mr A.J. Fraatz	Maddens
For the Defendant	Mr D.E. Curtain QC with Mr D. McWilliams	Wotton + Kearney

HIS HONOUR:

Introduction

On 5 December 2011, the Court approved the settlement of this class action.[1] In terms, the first order made on that day was:

“Pursuant to sections 33V, 33ZF, 33ZG and 33ZJ of the Supreme Court Act 1958, settlement of the proceeding upon the terms set out in the document entitled ‘settlement agreement’ signed by the parties (‘settlement agreement’) is approved.”

[1]Thomas v Powercor [2011] VSC 614. See further, Thomas v Powercor Australia Limited (Ruling No 8) [2012] VSC 130 and Powercor Australia Limited v Thomas [2012] VSCA 87.

By clause 2.2 of the settlement agreement, the defendant agreed to pay the plaintiff’s party-party costs of the proceeding, “to be taxed in default of agreement”. The settlement agreement dealt comprehensively with all aspects of the settlement (although, by clause 10.1, power was reserved to Maddens and Powercor to “refer any issues arising in relation to the administration of [the settlement agreement] to the Court for determination”). In any event, the question of costs was dealt with in clauses 2.1, 2.2, 2.3, 3.1(b)(vii) and (viii), 3.2(b), 6.4, 7.3 and 8.3 of the settlement agreement.

The plaintiff now seeks an order from the Court that he be entitled to a gross sum for costs and an order that there be an increase, not exceeding 30%, in the solicitors’ charges on taxation. In support of his applications, the plaintiff relies upon rules 63.07 and 63.34 of the Supreme Court (General Civil Procedure) Rules 2005.

The relevant rules

Rules 63.07 provides:

“(1) Subject to this Order, where by or under these Rules or any order of the Court costs are to be paid to a party, that party shall be entitled to taxed costs.
(2) Where the Court orders that costs be paid to a party, the Court may then or thereafter order that as to the whole or any part of the costs specified in the order, instead of taxed costs, that…

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 Thomas v Powercor (No 9)

Details

AGLC: Thomas v Powercor (No 9) [2012] VSC 207
Case: [2012] VSC 207
Decision Date: 18 May 2012

CaseChat Overview and Summary

Thomas v Powercor (No 9) involved a dispute regarding the construction of a settlement agreement between the parties, specifically focusing on the costs associated with the proceedings. The case was heard in the Supreme Court of Victoria. The primary issue was whether the costs of the proceeding, which were to be taxed in the event of a failure to reach an agreement, should be taxed or instead assessed as a gross sum. Additionally, there was a question concerning the appropriateness of increasing the solicitors' charges during the taxation of costs.

The court considered the authority under the Supreme Court (General Civil Procedure) Rules 2005, particularly rules 63.07 and 63.34, which grant the court discretion to allow an increase in solicitors' charges and to order a gross sum for costs instead of a taxed costs assessment. The court examined the nature of the settlement agreement and the circumstances surrounding the costs. It concluded that the costs should be assessed as a gross sum and that an increase in the solicitors' charges was warranted. The compromise reached by the parties was approved by the court, which took into account the overall fairness and reasonableness of the costs in light of the settlement agreement.

The final orders of the court included the approval of the compromise and the determination of the costs, reflecting the court's exercise of discretion under the relevant rules. The court's decision was grounded in the need to achieve a just and equitable resolution of the costs dispute, taking into account the terms of the settlement agreement and the broader context of the litigation.

Orders