Tonkin v Rajendran (No 2) - [2002] VSC 186

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

VALUATION, COMPENSATION & PLANNING LIST

No. 6226 of 2000

RAYMOND WILLIAM TONKIN	Plaintiff
v
ADRIAN RAJENDRAN AND MARIA JOANNE RAJENDRAN	Defendants

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JUDGE:	Balmford J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 May 2002
DATE OF JUDGMENT:	17 May 2002
CASE MAY BE CITED AS:	Tonkin v Rajendran (No. 2)
MEDIUM NEUTRAL CITATION:	[2002] VSC 186

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COSTS – plaintiff successful in the principal issue – defendants aware that their case could not succeed – plaintiff’s costs awarded on an indemnity basis

Sholl Nicholson v Chapman (No. 2) [2001] VSC 462
J-Corp Pty Ltd v Australian Builders Labourers Federation Union of Workers – Western Australian Branch (1993) 46 IR 301
Colgate palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M A Dreyfus QC with Mr B F Quinn	Victorian Government Solicitor
For the Defendants	Mr C W Porter	Wood Fussell

HER HONOUR:

These reasons should be read with the reasons for judgment delivered by me in the substantive matter between the same parties on 23 April 2002, as to which final orders were made on 16 May 2002, save as to the question of costs which was adjourned to today.

Mr Dreyfus, for the plaintiff, sought an order that the defendants pay the costs of the plaintiff on an indemnity basis. Both counsel were in agreement that the law on this question was as set out in [9] to [18] of my judgment in Sholl Nicholson v Chapman (No. 2)[1] , which it is not necessary to incorporate here.
[1][2001] VSC 462, decided on 3 December 2001

The plaintiff was successful in obtaining orders which, in summary, required the reinstatement of the roof and internal partition of the 1952 extension, both of which were removed on 4 May 1999 on the instructions of Mrs Rajendran and under her supervision. He was unsuccessful in respect of the items sought in the draft order relating to other defects in the property, as to which I was unable to be satisfied that they resulted from a contravention of the Act. However, it was the removal of the roof and the partition in contravention of the Act which led to the plaintiff’s concern with regard to the property and thus to the dealings between the parties which extended over three years, and to the initiation of this proceeding. It was the reinstatement of those items which was the principal aim of the plaintiff, as is apparent from the correspondence over the years. By far the greater part of the hearing was devoted to evidence relating to the concrete slab, which was directly related to the issue as to the reinstatement of the roof. The plaintiff thus can be said to have succeeded on the principal issue.

The principal submission of Mr Dreyfus was that, to use the words of French J in J-Corp Pty Ltd v Australian Builders…

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: [2002] VSC 186
Decision Date: 17 May 2002

CaseChat Overview and Summary

In the case of Tonkin v Rajendran (No 2), the plaintiff, Tonkin, sought a determination on several issues pertaining to costs in a prior litigation. The defendants, Rajendran, had contested these costs but ultimately, the court found in favour of the plaintiff on the principal issue, awarding costs on an indemnity basis. The matter was heard and determined in the Supreme Court of Victoria.

The central legal issue before the court was whether the plaintiff's successful outcome in the primary litigation justified an indemnity costs order against the defendants. The court had to consider whether the defendants were aware, at some point, that their case could not succeed. This issue hinged on the principles established in Sholl Nicholson v Chapman (No. 2), where it was held that an indemnity costs order could be appropriate if the party against whom it is sought was aware that their case could not succeed.

In reaching its decision, the court examined the relevant precedents and found that the principles in Sholl Nicholson and J-Corp Pty Ltd v Australian Builders Labourers Federation Union of Workers were applicable. The court found that the defendants had been aware at some stage that their case could not succeed, thereby justifying the award of indemnity costs. The court emphasised that such an award was not a punitive measure but a reflection of the defendants' awareness of the futility of their position.

The court ordered the defendants to pay the plaintiff's costs on an indemnity basis, as per the principles set out in the referenced cases. This decision underscores the importance of parties assessing the merits of their case and the potential consequences of pursuing litigation that they know to be without merit.

Orders