Westpac v Lee (Costs) - [2021] VSC 164

IN THE SUPREME COURT OF VICTORIA AT MELBOURNE

COMMERCIAL COURT

COMMERCIAL LIST – DIGBY J

Not Restricted

S ECI 2019 5783

WESTPAC BANKING CORPORATION (ABN 33 007 457 141)	Plaintiff
v
ANDI TUAN LEE AND ORS	Defendants

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JUDGE:	Digby J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF RULING:	1 April 2021
CASE MAY BE CITED AS:	Westpac v Lee (Costs)
MEDIUM NEUTRAL CITATION:	[2021] VSC 164

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COSTS – Costs of strike out application – Where strike out application adjourned to a date to be fixed pending amendments to pleadings – Where costs of and occasioned by adjourned strike out application reserved – Default position that interlocutory costs are ‘costs in the proceeding’ – Default position that interlocutory costs are not taxable until after completion of the proceeding – Whether court should depart from default position - Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 63.20, 63.20.1.

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The papers filed:

Plaintiff’s Material

Submissions filed 24 February 2021
Affidavit of Colin Almond sworn 24 February 2021

Eighth Defendant’s Material

Submissions filed 12 February 2021

HIS HONOUR:

These reasons concern competing costs applications by Westpac Banking Corporation (the plaintiff) and AJ&J Partners Pty Ltd (the eighth defendant) in respect of costs of and incidental to the Summons of the eighth defendant filed 6 April 2020 (the 6 April 2020 Summons) seeking to strike out claims made against the eighth defendant by the plaintiff in its Statement of Claim filed 25 February 2020 (the Statement of Claim), as amended.

Those competing costs applications in summary are as follows –

Orders sought by the eighth defendant against the plaintiff in relation to Submissions filed 12 February 2021:

(a) The eighth defendant, by its Submissions filed 12 February 2021,[1] seeks orders that the plaintiff pay its costs of and incidental to:
[1]See also Affidavit of Colin Almond, 24 February 2021 (Second Almond Affidavit).

(i) the eighth defendant’s 6 April 2020 Summons;

(ii) the adjourned directions hearing scheduled for 15 May 2020 (adjourned to 7 October 2020); and

(iii) the eighth defendant’s Submissions filed 14 August 2020;

(b) That the plaintiff pay its costs thrown away by reason of the amendments to the Statement of Claim and the Amended Statement of Claim filed 30 June 2020 (the Amended Statement of Claim), including costs associated with the eighth defendant’s Defence filed 27 March 2020;

(c) That such costs payable by the plaintiff pursuant to the preceding two paragraphs be payable on a standard basis and to be immediately taxed in default of agreement.

Orders sought by the plaintiff against the eighth defendant pursuant to Submissions filed 24 February 2021:

(d) The plaintiff, by its Submissions filed 24 February 2021, seeks orders that the eighth defendant pay the plaintiff’s costs occasioned by the 6 April 2020 Summons incurred after 30 June 2020 or alternatively, there be no order as to costs.

Background

Sufficient of the relevant history of the proceeding is set out at [4]-[5] of my Ruling in this proceeding…

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 Westpac v Lee (Costs)

Details

AGLC: Westpac v Lee (Costs) [2021] VSC 164
Case: [2021] VSC 164
Decision Date: 1 April 2021

CaseChat Overview and Summary

Westpac Banking Corporation commenced proceedings against Lee in the County Court of Victoria, seeking to recover a sum of money owed under a loan agreement. Lee subsequently filed a strike out application, which was adjourned to a later date to allow for amendments to the pleadings. The court reserved the costs of the adjourned strike out application, leading to a dispute over the taxation of those costs. The matter was subsequently transferred to the Supreme Court of Victoria, where Lee sought an order for the taxation of the reserved costs.

The central legal issue was whether the court should depart from the default position that interlocutory costs are not taxable until the completion of the proceeding. Lee argued that the default position should not apply, while Westpac contended that the costs should only be taxed at the end of the proceeding. The court considered the relevant provisions of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) and the principles guiding the taxation of interlocutory costs.

The court found that the default position under the Supreme Court (General Civil Procedure) Rules 2015 (Vic) should be followed, and interlocutory costs are not taxable until the completion of the proceeding. The court held that there were no exceptional circumstances warranting a departure from this default position. Consequently, the court ruled that the costs of the adjourned strike out application should remain reserved until the conclusion of the proceeding.

In light of the court's reasoning and decision, no orders were made for the taxation of the reserved costs at that time. The matter remains pending, with the costs to be determined upon the completion of the proceeding.

Orders