There are two elements to be considered. The first is that the costs in question have been reasonably and properly incurred. There is no issue about that in the present case. The second is that the costs must have been incurred in such circumstances such that, as between the plaintiff and the defendant against whom the costs order is sought, it is proper to order that they be paid by that defendant.
7 In respect of the second element, there are cases which point to conduct on the part of the unsuccessful defendant which has been such as to make it fair to impose a liability on it for the costs of the successful defendant. In Gould & Anor v Vaggelas & Ors (1983-1985) 157 CLR 215, Gibbs CJ expressed such a view at pp 229-231. His Honour referred to comments by Blackburn CJ in Steppke v National Capital Development Commission (1978) 39 LGRA 94 at 100. In Steppke , Blackburn CJ emphasised the importance of the attitude taken by the unsuccessful defendant, whether something said or done by it prior to the commencement of the proceedings or raised by it in the defence of the proceedings had led to the joinder of the successful defendant. Another example is Besterman v British Motor Cab Company Limited (1914) 3 KB 181 where, before the issue of the writ, the unsuccessful defendant had endeavoured to throw the blame on others and, as a matter of fact, the defendant who was ultimately unsuccessful had accused the other defendant of being partly to blame and that attitude had been persisted in right through the trial.
8 However, it is not necessary that there be attitude taken on the part of the unsuccessful defendant which has led to the joinder of a defendant or defendants who were successful in the action. Sanderson itself was a case in which defendants were sued in the alternative. It was held that the unsuccessful defendant should pay the costs of the other. That was because the circumstances of the case were such that both defendants ought to have been joined. Romer LJ and Stirling LJ both referred to Order XVI rule 7 and as to the prior rule of Chancery that all persons materially interested in the subject-matter of the suit ought in general to be made parties as plaintiffs or defendants, so that the Court might be enabled to do complete justice by deciding upon and settling the rights of all persons interested. Stirling LJ referred in this respect to Mitford on Pleading , p 164. Bullock v The London General Omnibus Company & Ors (1907) 1 KB 264, from which the term "Bullock order" derives, was a case where an order was made in the circumstance that there was an averment of a joint tort by both sets of defendants, with a separate charge of tort against each. In the reasons for judgment, no particular mention was made of any express conduct on the part of the unsuccessful defendant which brought about the joinder of the successful defendant.
9 In Altamura v Victorian Railways Commissioners (1974) VR 33, Kaye J examined the cases. At p 37, his Honour held that a Bullock order may be made even though the cause of action alleged against the successful defendant was different from that alleged and made out against the unsuccessful defendant, so long as the nature of the duty owed to the plaintiff by all the defendants was the same and arose out of the same factual circumstances. He rejected the contention put for the unsuccessful defendant that the costs of a successful defendant were not recoverable from the other defendant or defendants unless the causes of action were the same and the unsuccessful defendant had blamed the other party. Likewise, in Norwest Refrigeration Services Pty Ltd v Bain Dawes (WA) Pty Ltd (1984) 58 ALJR 521, Gibbs CJ, Mason, Wilson and Dawson JJ declined to make a Bullock order on the ground that, "It was a straightforward action which was not interdependent with or in any real sense alternative to the claim against the Co-operative."
10 In my opinion, the approach taken by Kaye J in Altamura should be followed. I note that in Gould v Vaggelas , Murphy J, Wilson J and Brennan J all took this wider approach.
11 In the present case, both the valuers and the solicitors had been given written instructions which, had they been complied with, would have led to the discovery of the s 310 Order, the failure to ascertain and disclose which has led to the judgment against the valuers. In my opinion, it was both inevitable and just that both the solicitors and the valuers were joined in the proceedings. The claims were interdependent and alternative. Although in the end there was no conduct on behalf of the valuers in which blame was laid upon the solicitors, other than that the solicitors and the valuers each had a cross-claim against the other, yet, it was a necessary part of the litigation against the valuers that the solicitors be joined. In this circumstance, I am of the view that a Bullock order should be made.
12 Accordingly, I shall order that the fourth to seventh defendants pay the plaintiffs' costs of the proceedings, including the costs payable by the plaintiffs to the first and second defendants. The costs ordered to be paid include the costs of the reference to Mr W H Nicholas QC.
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