Yume Group Holdings Pty Ltd v Ashthorn Ca Pty Ltd [No 2]

[2024] VSCA 148

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2023 0143

S EAPCI 2024 0012

YUME GROUP HOLDINGS PTY LTD (ACN 613 528 475)	Applicant/Cross-respondent
v
ASHTHORN CA PTY LTD (ACN 167 783 128) [NO 2]	Respondent/Cross-applicant

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JUDGES:	McLEISH and KENNEDY JJA and WALLER AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	26 June 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 148
JUDGMENT APPEALED FROM:	[2023] VCC 1945; [2023] VCC 2419 (Judge Burchell)

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COSTS – No point of principle.

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Counsel
Applicant/Cross-respondent:	Mr B Petrie
Respondent/Cross-applicant:	Ms FJ Bentley with Mr L Freckelton
Solicitors
Applicant/Cross-respondent:	K&L Gates
Respondent/Cross-applicant:	Peak Legal

MCLEISH JA
KENNEDY JA
WALLER AJA:

1. On 14 June 2024 we published reasons allowing the appeal and cross-appeal in these matters and made orders for written submissions as to the orders that should be made to give effect to those reasons and in relation to costs.[1]

   [1]Yume Group Holdings Pty Ltd v Ashthorn CA Pty Ltd [2024] VSCA 134 [103]–[104] (McLeish, Kennedy JJA and Waller AJA).

2. The appeal extended beyond the orders made on the trial, to include an appeal against costs orders made by the judge in an antecedent preliminary discovery proceeding. Those costs orders reflected the costs orders made at trial. The parties are agreed that orders should be made setting aside the judge’s orders in both proceedings. They also agree that the costs of the preliminary discovery proceeding should be borne by Ashthorn. We will make those orders.

3. The parties also agree that Ashthorn should pay Yume’s costs of the appeal, which was wholly successful.

4. There is disagreement as to the costs of the successful cross-appeal. Yume submits that the cross-appeal was minor in the larger scheme of things, and redundant once the appeal succeeded because the advisory retainer fees exceeded the amount in issue in the cross-appeal, against which those fees were rebated. As a result, Ashthorn’s success in the cross-appeal made no difference to the ultimate result of the trial, namely that Ashthorn’s proceeding was dismissed. Yume therefore says Ashthorn won a pyrrhic victory only and that Ashthorn should have to pay Yume’s costs of the cross-appeal. Yume notes that counsel for Ashthorn accepted that the cross-appeal concerned an ‘extremely low’ amount and would be ‘wholly cancelled out’ unless Ashthorn succeeded in respect of the SUEZ matter.

5. Ashthorn points out that the Salu Folk claim, the subject of the cross-appeal, potentially had a material impact on costs because of the offer of compromise in respect of the trial (which was close to the judgment sum but put aside by the judge in any event).[2] Further, when the cross-appeal was instituted Ashthorn had judgment in respect of the SUEZ matter and therefore stood to gain the amount in issue if the cross-appeal succeeded and the appeal failed.

   [2]Ashthorn CA Pty Ltdv Yume Group Holdings Pty Ltd [2023] VCC 2419 [103]–[104] (Judge Burchell).

6. In our view it would be wrong to require Yume to pay Ashthorn’s costs of the cross-appeal, in circumstances when nothing ultimately turned on the success or failure of the cross-appeal. As Yume submitted, this was a pyrrhic victory. Equally, however, Yume contested the cross-appeal and lost. Ashthorn rightly points out that, when instituted, the cross-appeal could have affected the judgment sum. It was therefore not always a hollow exercise for Ashthorn to pursue the matter. In the circumstances, there should be no order as to the costs of the cross-appeal.

7. Finally, there is the question of costs of the trial. Yume submits that Ashthorn should pay all its costs of the trial on the basis that Ashthorn’s claim was dismissed. Ashthorn submits that an issue by issue approach is appropriate, consistently with the way the judge decided the costs of the trial.[3] The judge ordered Yume to pay 50 per cent of Ashthorn’s costs of the trial, [4] and Ashthorn submits that, allowing for Yume’s success on the SUEZ issue and Ashthorn’s success on the Salu Folk matter, Ashthorn should be ordered to pay 75 per cent of Yume’s costs.

   [3]Ibid [97].

   [4]Ibid [97], [116]–[117].

8. In the end, however, Ashthorn has succeeded only on the Salu Folk claim, and lost on all other issues. Overall, its claim has been wholly dismissed and it would be unjust to deprive Yume of a portion of its costs in the circumstances. We consider that Ashthorn should pay all Yume’s costs of the trial as a result.

9. Both parties indicated when the Court delivered judgment that they sought indemnity certificates under s 4 of the Appeal Costs Act 1998. The submissions and draft orders that have been filed refer only to a certificate for Ashthorn. We infer that this is because Yume’s primary position is that Ashthorn should pay its costs of the cross-appeal, so that a certificate would not avail Yume: s 5(1)(b) provides only for a respondent’s costs that are not ordered to be paid by any other party. Since we have not accepted that submission, and Yume will have costs of the cross-appeal that are not ordered to be paid by Ashthorn, we will grant both parties indemnity certificates.

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