Tonkin v Rajendran (No 2)
[2002] VSC 186
•17 May 2002
| 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 Labourers Federation Union of Workers - Western Australian Branch[2] , cited by Sheppard J in Colgate Palmolive Co v Cussons Pty Ltd[3] , the defendants had persisted “in what should on proper consideration be seen to be a hopeless case”. Mrs Rajendran had conceded in cross-examination that she was aware that the property was listed on the Register, and that she was not permitted to carry out works on the property without a permit. Accordingly, Mr Dreyfus submitted, it must be concluded that the proceeding, insofar as it related to the principal issue, that is, the roof and the internal partition, was defended with the knowledge that the defence could not succeed.
[2](1993) 46 IR 301 at 303.
[3](1993) 46 FCR 225 at 229 ff
The principal ground of submissions and argument at the hearing of the substantive issue was the condition of the concrete slab, as to which several witnesses were called on each side. I found that I was not convinced that the condition of the slab was such that it would be futile to order the reinstatement of the roof. Had I found otherwise, the defendants might well have succeeded. However, Mr Schofield was the only witness called for the defendants who considered that the 1952 extension should be demolished, and none of the witnesses called for the plaintiff were of that view, although their estimates of the future stability of the slab were more optimistic than those of the defendants’ witnesses. Nevertheless, the defendants’ witnesses could not be said to have given strong support to a submission that the reinstatement of the roof would be futile.
The power of the Court under section 168 is a power to “make any order it thinks fit to remedy or restrain the contravention” of the Act which it is satisfied has occurred. Although Mrs Rajendran in evidence disputed that there had been a contravention of the Act, Mr Porter did not submit that there had been no such contravention. It was never seriously in issue that there had been a contravention, constituted by Mrs Rajendran’s removal of the roof and the internal partition, thus enlivening the power of the Court under section 168. Nevertheless, it could be said that the Court might have decided to make no order under that section.
However, it was not suggested in the submissions for the defendants that the house did not have the cultural significance for which the plaintiff contended; or that the carrying out of the works sought by the plaintiff would not restore the building to a state where it would maintain its cultural significance; or that it was unreasonable to require the defendants to be concerned with that cultural significance given that they had bought the property seventeen years before it was placed on the Register; or that the defendants were not financially in a position to carry out the orders sought. The submissions made on behalf of the defendants related more to the history of the dealings between the parties than to the considerations relevant to the power of the Court to make the order sought and the criteria for the exercise of the Court’s discretion.
Mr Porter, for the defendants, opposing the application of Mr Dreyfus, submitted that each party should bear its own costs, or that the plaintiff should pay the defendants' costs on a party and party basis. He submitted that the institution of the proceeding and its hearing in March of 2002 were unnecessary and ill-timed. The hearing should have awaited the hearing, fixed for later this month, of the appeal by the defendants to the Heritage Council against the refusal of a permit to develop the property to complete the demolition of the 1952 extension and to construct a substantial addition, incorporating 5 bedrooms with servants’ quarters, lap pool and living areas.
However, to adjourn the hearing of this proceeding, initiated as long as ago as 25 July 2000, pending an appeal against a refusal of a permit, would encourage the defendants to attempt defer the hearing indefinitely by the making of further applications and appeals.
Mr Porter also referred to difficulties which had arisen between the parties in the past. However, those matters are not relevant to the question now before me. Essentially, he repeated the submissions which he had made at the hearing of the substantive issue.
He also submitted, if I understood him correctly, that the defendants were entitled to rely on the statement at page (ii) of the Executive Summary of the Conservation Management Plan, to the effect that, because of the problems associated with the concrete slab, the 1952 extension “probably needs to be demolished”. However, that statement in the Executive Summary is not consistent with the recommendations set out at page 75 in the body of the Conservation Management Plan, on which Mr Porter relied substantially at the hearing on the substantive issue (see [57] of the reasons for judgment).
To quote again from the judgment of French J cited in [3] above:
Although there is said to be a presumption in such cases that the action was commenced or continued for some ulterior motive or in wilful disregard of known facts or clearly established law, it is not a necessary condition of the power to award such costs that a collateral purpose or some species of fraud be established. It is sufficient, in my opinion, to enliven the discretion to award such costs that, for whatever reason, a party persists in what should on proper consideration be seen to be a hopeless case.
I make no finding of any ulterior motive, collateral purpose or fraud.
However, given that the defendants were represented by experienced counsel, I can only conclude, from the failure to make any submission of the kind to which I have referred in [6] above, that the defendants were aware that there would have been no substance in any such submission; and thus that they were aware that the case in respect of the roof and the partition was hopeless. Yet they nevertheless continued the defence of the proceeding.
That being so, I consider it appropriate that there be an order that the defendants pay the plaintiff’s costs of this proceeding on an indemnity basis and I so order.
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