Warren v Efficient Pure Plumbing Pty Ltd (No 2) - [2022] VSC 745

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2022 00889

BETWEEN:

LUKE WARREN	Appellant
v
EFFICIENT PURE PLUMBING PTY LTD (ACN 156 020 825)	Respondent

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JUDGE:	Barrett AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers, submissions filed by the Respondent on 12 October 2022
DATE OF RULING:	6 December 2022
CASE MAY BE CITED AS:	Warren v Efficient Pure Plumbing Pty Ltd (No 2)
MEDIUM NEUTRAL CITATION:	[2022] VSC 745

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COSTS – Whether costs should be awarded on a gross sum basis – Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 63.07(2)(c) – Civil Procedure Act 2010 (Vic) s 65C(2)(c) – Giurina v Greater Geelong City Council (No 2) [2021] VSCA 341 – Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 3) [2012] VSC 399 – Costs awarded on a gross sum basis.

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ON THE PAPERS:	Counsel	Solicitors
For the Appellant
For the Respondent	Mr J Gladwin, solicitor	Gladwin Legal

HIS HONOUR:

This is a costs ruling following the decision of Warren v Efficient Pure Plumbing Pty Ltd.[1]
[1][2022] VSC 594.

On 7 October 2022, I delivered reasons in this proceeding, and ordered that the appeal be dismissed pursuant to r 58.10(9)(b) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘Rules’). At the conclusion of those reasons I stated as follows:

The usual rule is that costs follow the event. In this case, EPP [the respondent] has been successful. Accordingly, I propose also to order that Mr Warren [the appellant] pay EPP’s costs of and incidental to the appeal on a standard basis to be taxed in default of agreement, unless the parties notify the Court within 7 days of this decision that they contend for a different order as to costs. If they do, then I direct the parties, within 7 days of this decision, to file submissions of no more than 3 pages, and the parties will be notified of the further disposition of that question in due course.

The appellant has not filed any submissions on costs.

On 12 October 2022, the respondent filed submissions on costs, supported by an affidavit of Mr Gladwin, being the respondent’s solicitor, affirmed on 12 October 2022. The respondent seeks an order that the appellant pay its costs of $5,254.30 on a gross sum basis pursuant to r 63.07(2)(c) of the Rules or alternatively s 65C(2)(c) of the Civil Procedure Act 2010 (Vic) (‘CPA’).

In the circumstances there is no reason to depart from the usual order that costs should follow the event. The question then is whether it should be specifically in the amount sought, or whether it should be on a particular basis to be taxed in default of agreement.

Rule 63.07(2)(c) of the Rules provides:

63.07 Taxed or other costs provision
(1)Subject to this Order, where by or under these Rules or any order of the Court costs are…

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: [2022] VSC 745
Decision Date: 6 December 2022

CaseChat Overview and Summary

The case of Warren v Efficient Pure Plumbing Pty Ltd (No 2) involved a dispute between a homeowner and a plumbing company. The homeowner, Mr Warren, sought to recover costs incurred from the plumbing company for a project that did not meet the agreed standards. The matter was heard in the County Court of Victoria. The primary legal issues concerned whether the costs should be awarded on a gross sum basis rather than a detailed assessment of costs, in accordance with the Supreme Court (General Civil Procedure) Rules 2015 (Vic) rule 63.07(2)(c) and the Civil Procedure Act 2010 (Vic) section 65C(2)(c). The court had to consider relevant case law, notably Giurina v Greater Geelong City Council (No 2) and Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 3), to determine the appropriate method of cost assessment.

The court examined the relevant provisions of the Civil Procedure Act and the Supreme Court Rules to ascertain the conditions under which costs could be awarded on a gross sum basis. It was established that the gross sum basis for awarding costs was typically reserved for cases where the costs were not in dispute or where the detailed assessment would be disproportionate. The court found that in this instance, the detailed assessment of costs would be disproportionate due to the complexity and volume of documentation involved. The court referenced Giurina and Sunland Waterfront, which supported the notion that a gross sum basis was appropriate when a detailed assessment would unduly burden the parties and the court.

Ultimately, the court ruled that the costs should be awarded on a gross sum basis. The reasoning was grounded in the practicalities of the case and the precedent set by higher courts. The court determined that a detailed assessment would not only be excessively burdensome but also not serve the interests of justice by disproportionately increasing the costs of litigation. This decision aligned with the principles set out in the cited cases, which emphasised the proportionality and fairness in the awarding of costs.

The final orders included the awarding of costs on a gross sum basis, reflecting the court's determination that this method was appropriate given the circumstances of the case. The specific amount of costs awarded was to be determined by the parties in accordance with the gross sum approach, avoiding the need for a detailed examination of each individual cost item.

Orders