Procedure - Civil proceedings in State and Territory courts - Costs - Depriving successful party of costs - Other cases - Substantial success - Applicants substantially successful - No reason to depart from general rule.

Cretazzo v Lombardi [1975] SASC 2512; (1975) 13 SASR 4; Oshlack v Richmond River Council [1998] HCA 11, 193 CLR 72, State of Tasmania v Effingham Pty Ltd (No 2) [2006] TASSC 32, applied.

Judgment Number: [2025] TASSC 68

and DAVID ANTHONY BENSON v DOLORAINE PTY LTD and

1. The applicants apply for an order that the respondents pay their costs of the taking of an account. My findings in the account are stated in Benson v Doloraine Pty Ltd & Anor [2025] TASSC 25 and further reasons for final orders in Benson v Doloraine Pty Ltd & Anor (No 2) [2025] TASSC 63. The account was ordered by Porter J on 31 August 2015: Benson v Doloraine Pty Ltd [2015] TASSC 41, 26 Tas R 252.
2. The respondents submit that there should be no order as to the costs of the proceedings between 31 August 2015 and the hearing which commenced on 19 August 2024 and that, thereafter, the respondents should be required to pay only half of the applicants' costs. The respondents assert that they were substantially successful on separable issues concerning the falsifications claimed by the applicants. They contend that matters raised by them resulted in prehearing concessions by the applicants and orders less favourable to the applicants than were sought. The respondents successfully resisted a claim for compound interest. The respondents also attribute delay to the applicants. These matters, they argue, should result in the making of the orders apportioning costs.
3. The general rule is that an unsuccessful party will be ordered to pay the successful party's costs: Oshlack v Richmond River Council [1998] HCA 11, 193 CLR 72. The general rule may, in the exercise of discretion, be departed from in appropriate cases. One reason for such a departure may be to take into account success or failure on particular issues, especially if they are costly, dominant and separable. A successful party who has failed on certain issues, either of fact or law, may not only be deprived of the costs of those issues but may be ordered as well to pay the other party's costs of them: Oshlack at [40] and [134]; State of Tasmania v Effingham Pty Ltd (No 2) [2006] TASSC 32. However, it is often the case that successful parties fail on particular issues, and an unsuccessful party cannot expect the favourable exercise of a costs discretion just for that reason: Cretazzo v Lombardi [1975] SASC 2512; (1975) 13 SASR 4, Bray CJ at 16 and J D M Investments Pty Ltd v Toddern Pty Ltd [2000] NSWSC 432 per Hamilton J at [4].
4. In this case I see no just and fair reason to deprive the applicants of, or limit their entitlement to, an order that the respondents pay their costs. The applicants were substantially successful. Against considerable opposition, they established that the respondents made payments of substantial sums from assets of the fixed trusts which were not authorised by the terms of those trusts, and that the respondents were liable to make good that loss with interest. A considerable part of the hearing was devoted to the respondents' unsuccessful contentions that amounts to be repaid should be subject to other adjustments. The applicants did not unreasonably pursue or persist with unmeritorious claims. To the extent that the claimed falsifications were not accepted by the Court, the arguments did not unduly or unreasonably add to the length or cost of the proceedings. Although compound interest was not awarded, the respondents unsuccessfully claimed that the applicants should not be awarded any interest. I have previously addressed the issue of delay adversely to the respondents: Benson v Doloraine Pty Ltd & Anor [2025] TASSC 25 at [81]. There were no other issues raised, for example formal or informal offers of compromise, which were relevant to costs.
5. I order that the respondents pay the applicants' costs of the proceedings. I certify for counsel.