COSTS – liquidators’ costs – dispute between liquidators and others as to the ownership of funds in Court, the source of which was a company account – held that the company did not beneficially own the funds – whether a portion of the liquidators’ costs should nevertheless be paid from the funds before payment out to the beneficial owner – whether the liquidators had ‘cared for or preserved the funds’ – Re Universal Distributing Co Ltd (in liq) (1933) 48 CLR 171; Stewart v Atco Controls Pty Ltd (in liq) (2014) 252 CLR 307; Primary Securities Ltd v Willmott Forests Ltd (recvs and mngrs apptd) (in liq) & ors (2016) 50 VR 752 discussed and distinguished.
COSTS – competing applications for payment of funds out of Court – whether a costs order should be made in favour of the unsuccessful claimant for some of its costs – held: yes given the nature of the proceeding and conduct of the successful claimant.

AAD Services Pty Ltd (In liq) v ALD Wholesale Pty Ltd and ors (No 2) [2019] VSC 99

COSTS – liquidators’ costs – dispute between liquidators and others as to the ownership of funds in Court, the source of which was a company account – held that the company did not beneficially own the funds – whether a portion of the liquidators’ costs should nevertheless be paid from the funds before payment out to the beneficial owner – whether the liquidators had ‘cared for or preserved the funds’ – Re Universal Distributing Co Ltd (in liq) (1933) 48 CLR 171; Stewart v Atco Controls Pty Ltd (in liq) (2014) 252 CLR 307; Primary Securities Ltd v Willmott Forests Ltd (recvs and mngrs apptd) (in liq) & ors (2016) 50 VR 752 discussed and distinguished.
COSTS – competing applications for payment of funds out of Court – whether a costs order should be made in favour of the unsuccessful claimant for some of its costs – held: yes given the nature of the proceeding and conduct of the successful claimant.

Atkinson v Killarney Properties Pty Ltd & Ors (No.3) [2018] FCCA 3634

COSTS – Proceedings under the Fair Work Act 2009 (Cth) – application for an extension of time in which to file an application alleging a contravention of a general protection previously dismissed – whether proceedings instituted without reasonable cause – where substantive application filed out of time – where weak case with no reasonable prospects of success – whether unreasonable act or omission causing the other party to incur costs – whether settlement offer or offers imprudently refused – whether indemnity costs. EVIDENCE – Hearsay rule – admissibility of hearsay evidence in interlocutory hearing – hearsay evidence in affidavit – admissibility of business records under exception to hearsay rule – admissibility of settlement offers.

Burkett v Bendigo and Adelaide Bank (No 4) [2019] VSC 140

PRACTICE AND PROCEDURE – Costs – s24(1) Supreme Court Act 1986 – Part 4.5 Civil Procedure Act 2010 – rr63.02 and 63.04 Supreme Court (General Civil Procedure) Rules 2015 – Where plaintiff has been successful – Where costs follow the event - Whether plaintiff should be granted indemnity costs – Where plaintiff seeks to rely on contractual agreement for allocation of costs – Where trial judgment found no valid and enforceable contractual agreement – Where plaintiffs do not submit any other basis for award of indemnity costs - Application for indemnity costs refused.

Champions Lawyers v Rohrt & Ors [2018] VSC 400

COSTS COURT – Practice and Procedure - Failure to comply with order to serve a costs estimate - Orders 63.56.2(2), 63.01, 63.07(2).

Cody v O’Neill [2019] VSC 94

COSTS – Plaintiff partially successful – Costs follow event – Standard basis – Supreme Court (General Civil Procedure) Rules 2015, r 63.31 – Plaintiff abandoned other claims – Effective discontinuance of part of proceeding – Starting point discontinuing party pays costs – Not displaced – Standard basis – Supreme Court (General Civil Procedure) Rules 2005, rr 25.05 and 63.15 – ASTA v Amasya [2016] VSCA 186; Lai Qin (1997) 186 CLR 622; Soteriadis v Nillumbik Shire Council [2015] VSC 363 – Indemnity costs – Calderbank offers – Not unreasonable to reject offers – Chen & Ors v Chan & Ors [2009] VSCA 233; Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) [2005] VSCA 298; Gunns Ltd & Ors v Marr & Ors (No 4) [2007] VSC 91

Charan v Nationwide News Pty Ltd [2019] VSCA 36

COSTS – Defamation – Unsuccessful plaintiff – Offer to settle by defendant – Offer requiring substantial capitulation by plaintiff – s 40(2)(3) Defamation Act 2005 – Order by trial judge that plaintiff pay indemnity costs from date of expiry of offer – Whether judge misconstrued or misapplied provisions of Defamation Act – Whether judge mistook the facts – Whether judge failed to take relevant circumstances into account – Errors alleged not reasonably arguable – Leave to appeal refused

Country Endeavours Pty Ltd v Casacir Pty Ltd

Practice and procedure — Costs — Enforcement of cost orders — Unreasonable conduct

Daicos v Daicos & Anor (No 2)
[2018] VSC 693 (14 November 2018) (McMillan J)

COSTS – Where plaintiffs sought specific performance of terms of settlement – Proceeding resolved by agreement save as to costs – Where parties sought costs orders against each other – Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622.

COSTS – Interest on costs – Jurisdiction as to Costs – Discretion as to costs – Where parties seek determination on interest entitlement – Whether interest should run from the date invoices were paid – Whether claimant should be indemnified for costs under loan agreement – Supreme Court Act 1986 (Vic) s 101.

EFM Logistics v David Weerden & Ors [2019] VSC 100

COSTS – Discovery of documents.

COSTS – Where statement of claim struck out – where application dismissed for non-appearance – other costs – whether indemnity costs to be awarded. PRACTICE AND PROCEDURE – Where orders made in a party’s absence – application may be made to set aside orders.

COSTS – Application dismissed against third defendant – Indemnity costs sought by plaintiff and first and second defendant – Calderbank offer – Offers of compromise – Offer to capitulate or genuine offer – Whether applicant had an arguable claim – Whether costs to follow the event – Preserve the status quo – Costs reserved – United Petroleum Australia Pty Ltd v Herbert Smith Freehills (No 2) [2018] VSC 501 – Supreme Court Act 1986 (Vic), s 21 – Supreme Court (General Civil Procedure) Rules 2015 (Vic), rr 63.02, 63.28.

Hammond (a Pseudonym) v Secretary to Department of Health and Human Services & Ors [No 2] [2019] VSCA 45

APPEAL – Costs – Appellant’s appeal successful – Matter remitted to trial division for determination – Appellant sought costs against Attorney General, the only party opposing the appeal – Whether exceptional circumstances exist to depart from usual rule that costs follow the event – Attorney General fulfilling an important public interest function – Appellant funded by Victoria Legal Aid – Exceptional circumstances found in totality of arguments advanced – No order as to costs.

Hall v Hall & Ors (No 2) [2019] VSC 60

COSTS – Settlement of proceedings – Deed of settlement reserved parties’ right to seek costs order – Deed of settlement extended well beyond resolution of causes of action pleaded against first defendant – No proper basis for ordering first defendant to indemnify trustee for the plaintiff’s costs.

Hermiz, Sam v Yousif, Linda and Registrar of Titles [2019] VSC 160

COSTS - Indemnity costs - whether defendant should pay the plaintiff's costs on an indemnity basis - Caveat not having a proper basis, costs awarded against the defendant on an indemnity basis - Goldstraw v Goldstraw [2002] VSC 491; Love v Kempton [2010] VSC 254; Sovereign MF Ltd (In liq) v EOS Janus Holdings Pty Ltd referred to

COSTS – Costs of summary judgment application – Costs of strike out application – Where applications were heard together – Where both applications failed – Default position that costs are ‘costs of the proceeding’ – Whether court should depart from default position – Costs reserved – Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 63.20.

Konstandellos & ors v Harplex Pty Ltd & anor (No 2)
[2018] VSC 702 (06 December 2018) (Daly AsJ)

COSTS – Application by the plaintiffs for orders that a successful defendant not receive its costs of the proceeding, and that the successful defendant pay the costs of another successful defendant for which the plaintiffs are liable to pay – Whether there is any good reason or special circumstances to warrant a departure from the usual order for costs – Verna Trading Pty Ltd v New India Assurance Co Ltd [1991] 1 VR 129, applied – Loizou v Derrimut Enterprise Pty Ltd (No 2) [2004] VSC 548; Khodr v G4 Custodial Services Pty Ltd [2016] VSC 800, referred to – Not established conduct of successful defendant caused the plaintiffs to issue the proceeding against the other successful defendant – Conduct relied upon had no relevance to claim brought against successful defendant from whom costs claimed – No allegation by the plaintiffs against the defendant regarding any unnecessary litigation or expense ­– Application dismissed

Kheir v Secretary to Dept of Justice and Regulation

COSTS - Judicial review proceeding seeking mandamus to compel a decision under s 58E, Corrections Act 1986 - Decision made after proceeding commenced - Plaintiff made 'Hazeldene' offer after decision made - Whether plaintiff had arguable claim for mandamus - Whether plaintiff or defendant the successful party - Whether defendant's failure to accept offer unreasonable - Failure to accept offer did not meet standard required of model litigant - Failure to accept offer unreasonable, defendant ordered to pay indemnity costs from date of offer - Corrections Act 1986 (Vic), s 58E

Loustas v Sier & Ors (costs ruling)
[2018] VSC 709 (21 November 2018) (Macaulay J)

PRACTICE AND PROCEDURE – Costs – Application for personal costs orders against plaintiff’s legal advisors and expert accounting witnesses – Underlying proceeding concerned property development on land which remained ongoing throughout interlocutory phase of litigation – Plaintiff awarded nominal damages at trial only – Jurisdiction to award personal costs orders – Supreme Court Act 1986, s 24 and Supreme Court (General Civil Procedure) Rules 2015, O 63 considered – Knight v FP Special Assets Limited [1992] 174 CLR 178, considered – Overarching obligations – Applicant contends plaintiff’s legal advisors and expert accounting witnesses contravened overarching obligations by continuing to act once it became reasonably clear the property development would return a substantial loss – Civil Procedure Act 2010, ss 17, 19, 21(b), 22, 23, 24 and 29, considered – Application dismissed.

Lake v Municipal Association of Victoria (No 2)
[2018] VSC 660 (01 November 2018) (Ginnane J)

COSTS – Successful self-represented plaintiff – Barrister – Member of the Victorian Bar – Entitled to costs for work as counsel – Entitled to reasonable disbursements – Supreme Court Act 1986 ss 3(1), 24 (1).

COSTS – Exercise of discretion as to costs – Departure from normal rule that costs follow the event – Separate and discrete issues at trial – Plaintiffs successful on one claim but unsuccessful on others – Relative importance and complexity of claims – Apportionment of costs – Applicable principles – Whether cost entitlement broadly equivalent – Supreme Court (General Civil Procedure Rules) 2015 Rule 63.04 – ASIC v Flugge (No 2) (2017) 342 ALR 478, Chen v Chan [2009] VSCA 233 and McFadzean v Construction Mining and Energy Union (2007) 20 VR 250 applied – Order that plaintiffs pay 50 per cent of defendant’s costs.

Marriner v Meerkin & Apel [2019] VSC 36

Consideration of ‘matter’ in Transitional Provision 3.1(1) of the Legal Profession Act 2004 (Vic)

Michell v Onroad Offroad (Costs)
[2018] VSC 706 (16 November 2018) (Digby J)

COSTS – Costs of the proceeding – Reserved costs – Where successful party made unsuccessful adjournment application – Whether costs should be taxed on an indemnity basis – Where unsuccessful party is a trustee in bankruptcy – Whether costs of the proceeding should be paid from the bankrupt estate – Whether costs of the proceeding should be paid personally by the trustee.

Midland Metals Overseas Pte Ltd v Powercor Network Services Pty Ltd [No 2] [2019] VSCA 90 (17 April 2019)

COSTS – Appeal – Successful respondent seeking indemnity costs – Inappropriate process –Disproportionate costs – Calderbank offer – Whether rejection of offer unreasonable – Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority [No 2] [2005] VSCA 298; (2005) 13 VR 435, applied.

Mango Boulevard Pty Ltd v Whitton [2019] FCA 490 (11 April 2019)

COSTS – indemnity principle – barrister’s contingent costs agreement with uplift fee in relation to claim for damages – whether costs agreement void – whether barrister entitled to recover costs – where separate costs agreements for separate proceedings – barrister not precluded from recovering costs – where costs agreement did not include an estimate of the uplift fee – applicant only required to pay the respondents the fair and reasonable value of barrister’s services

Naismith v Fraser (No 2)
[2019] VSC 19 (31 January 2019) (Zammit J)

COSTS – Where plaintiff unsuccessful – Where size of estate revised downwards after grant of probate – Where Calderbank offer after mediation and before trial – Offer refused – Whether refusal of offer reasonable – Supreme Court (General Civil Procedure) Rules 2015 r 63.28 – Civil Procedure Act 2010 s 24.

Ozaltay & Anor v Atilla & Anor (No 2)
[2018] VSC 764 (07 December 2018) (McMillan J)

COSTS — Where conduct of plaintiffs caused delay and extended duration of trial —Where first defendant successful at trial — Where first defendant seeks costs against the solicitors for the plaintiffs for abandoned claim — Where first defendant seeks costs against the plaintiffs on an indemnity basis — Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd (No 5) (2014) 48 VR 1 — Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225.

PRACTICE AND PROCEDURE – Costs – Successful application for preliminary discovery – Whether costs should be awarded to the plaintiff or the defendants and if so whether on an indemnity basis – Supreme Court Act 1986 (Vic), s 24(1).

Quilligan, John Francis v Copyshift Group P/L (ACN 007 230 006); Melbourne Packaging Supplies P/L (ACN 005 605 952); Swift Transport Services P/L (ACN 101 606 400) and Callos, Benjamin (No 2) [2019] VSC 221

COSTS - Third defendant's application for indemnity costs - Plaintiff's application for Serious Injury Certificate and negligence action failed on causation ground - Third party's Calderbank offer before it was joined as third defendant - Calderbank offer that plaintiff not issue proceeding against it and bear his own costs - Plaintiff's refusal of offer not unreasonable - Third defendant's costs while a third party - Standard costs ordered

Re Ash; Ash v Ash-Grimm
[2018] VSC 687 (12 November 2018) (McMillan J)

COSTS —Where caveator withdrew her grounds of objection to the grant of letters of administration — Where caveator seeks her costs on a standard basis from the estate of the deceased — Where caveator brings her application by her litigation guardian — Where caveator’s application misconceived and without a proper basis — Supreme Court Act 1986, s 24.

Re Arklie [2019] VSC 138

COSTS — Where plaintiffs and first defendant seek costs against each other or from estate of the deceased — Where plaintiffs successful on substantive application — No point of principle — Supreme Court Act 1986, s 24 — Supreme Court (General Civil Procedure) Rules 2015, r 63.

Re Kuppert; Vella & Anor v Mattingley & Anor [2019] VSC 68

COSTS — Application to remove executor and trustee of estate of deceased — Whether costs reasonable and proportionate to issues in dispute — Costs fixed by the Court — Supreme Court Act 1986, s 24 — Civil Procedure Act 2010 —Supreme Court (General Civil Procedure Rules) 2015.

Re Rattle (No 3); Equity Trustees Ltd v Halstead [2019] VSC 69

COSTS — Where plaintiff agrees to fixed costs of the proceeding — Where defendant joined after appointment of independent contradictors — Where defendant unsuccessful — Where defendant seeks fixed costs on an indemnity basis from the estate — Defendant’s application not allowed — Supreme Court Act 1986, s 24.

Rivex Crane Hire P/L (ACN 609 411 261) v Armquip P/L (ACN 102 364 634); G L Armstrong Holdings P/L (ACN 125 833 052); Armstrong, Graeme John and Armstrong, Leon Charles (No 2) [2019] VSC 208

COSTS - Indemnity costs - Calderbank offer - Offer of compromise - Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority [2005] VSCA 298 - North West Melbourne Recycling Pty Ltd v Commissioner of State Revenue (No 2) [2007] VSC 726 - Supreme Court (General Civil Procedure) Rules 2015, Rule 26

Robby Gordon Entertainment/SST Inc v Confederation of Australian Motor Sport Ltd (Indemnity Costs) [2019] VSC 167

COSTS - Indemnity Costs - Whether costs should be taxed on an indemnity basis - Whether the Court should order indemnity costs by reason of the terms of a written Agreement between the parties - Whether, in the discretion of the Court, other factors related to the plaintiff's conduct in the proceeding warrant an order for indemnity costs - Supreme Court (General Civil Procedure) Rules 2015 r 63

Rossetti v Aus Gold Mining Group Pty Limited [2018] FCA 1649

COSTS – payment of costs for failing to attend mediation.

Snapper Holdings P/L (ACN 155 068 367) and Bertuna, Angelo Anthony v Lentini, Vita (Vicki) (in her own right and as executor of the will and estate of the late Lina Bertuna); Lentini, Vita (Vicki) (in her own right and as executor of the will and estate of the late Lina Bertuna) v Snapper Holdings P/L (ACN 155 068 367) and Bertuna, Angelo Anthony (Costs) [2019] VSC 204

PRACTICE AND PROCEDURE - Costs - Dispute as to the validity and enforceability of Terms of Settlement - Terms of Settlement found to be valid, final and binding - Plaintiff unsuccessful and defendant successful on counterclaim - Calderbank offer made before trial - Whether rejection of offer unreasonable in the circumstances - Rejection of offer not unreasonable in the circumstances - Costs follow the event: Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435. INTEREST - Pre-judgment interest on debt or sum certain - Whether interest should be allowed for the full period since due and payable - Whether good cause is shown to the contrary - Principles applicable to an award of interest considered - Supreme Court Act 1986 (Vic), s 58 - Victorian Workcover Authority v Esso Australia Limited (2001) 207 CLR 520; Clarke v Foodland Stores Pty Ltd [1993] 2 VR 382 referred to.

COSTS – Offer of compromise by plaintiff – Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 26.08 – Stevens v Spotless Management Services Pty Ltd (No 2) [2016] VSCA 311 (12 December 2016) – Nakos v Serdaris [2016] VSC 179 (27 April 2016) – Whether plaintiff entitled to costs on an indemnity basis – Calderbank offers by first defendant to second defendant – Calderbank v Calderbank (1975) 3 All ER 333 – Hazeldene’s Chicken Farm v VWA (No 2) [2005] VSCA 298 (13 December 2005) – Whether refusal of offers was unreasonable in the circumstances.

Talacko v Talacko (Costs Ruling)
[2018] VSC 807 (20 December 2018) (McDonald J)

COSTS – Special and unusual circumstances – Defendants engaged in conduct constituting an equitable fraud which compelled plaintiffs to commence proceeding – Plaintiffs’ legitimate aspirations to enforce equitable compensation judgment frustrated by defendants’ conduct – Defendants engaged in misconduct in litigation – Defendants’ conduct warranting indemnity costs order – Gross sum costs order – Bankruptcy Act 1966 (Cth) s 77(1)(e) – Foreign Judgments Act 1991 (Cth) s 15 - Civil Procedure Act 2010 s 20 – Supreme Court Act 1986 s 24(1) –Supreme Court (General Civil Procedure) Rules 2015 rr 26.03(3), 63.07(2)(d), 63.31, 63.34, 77.05.

The Roman Catholic Trusts Corporation for the Archdiocese of Melbourne v VWA [2019] VSC 22

COSTS COURT – Question of common costs – Smith v Madden [1946] HCA 19; (1946) 73 CLR 129; Geatches v Anglo Coal (Moranbah North Management) Pty Ltd & Anor [2014] QSC 106 considered.

Trkulja, Milorad v Google Inc (Costs ruling) [2018] VSC 610

COSTS – Where proceeding irregularly commenced by summons - Where withdrawal of summons effectively terminates proceeding - No explanation for commencement of proceeding or withdrawal of summons - Defendant out of the jurisdiction and reserved its rights to appear - Defendant entitled to costs - Defamation Act 2005 (Vic) s 23 - Supreme Court Act 1986 (Vic) s 24.

Udaipur Lake Pty Ltd v Michael Sklovsky Pty Ltd (Ruling) [2019] VSC 114

PRACTICE AND PROCEDURE – Costs – Respondents’ application to set aside valuation successful - Order in favour of the respondents on basis that costs should follow the event.

COSTS - Whether cost orders should be made in respect of proceedings in Victorian Civil and Administrative Tribunal - Whether special costs order should be made - Whether rejection of Calderbank offer was reasonable - Domestic Building Contracts Act 1995 s 57 - Victorian Civil and Administrative Tribunal Act 1998 ss 109, 148