Plaintiff v Defendant

1 These reasons concern claims by the plaintiff for interest and costs against the defendant in unusual circumstances.

2 On 4 June 2018 the Court made declarations in favour of the plaintiff by consent. The declarations concerned whether an Exclusive Sale Authority between the plaintiff, as vendor, and the defendant, as agent, complied with requirements set out in the Estate Agents Act 1980 (Vic) (the Act) and whether the defendant was entitled to retain any commission in respect of the sale of the plaintiff's property at 37 Oak Street Beaumaris (Property). The Property had been sold by the plaintiff, through the agency of the defendant, to Iconic Property Development Australia Pty Ltd by a contract of sale dated 16 February 2017.

3 The deposit monies had been retained by the solicitors for the defendant pending resolution of a dispute as to the entitlement of the defendant to commission on the sale of the Property. In consequence of the decision of the Court of Appeal in Advisory Services Pty Ltd (t/as Ray White St Albans) v Augustin,[1] which was handed down on 19 April 2018, the plaintiff and defendant agreed to a resolution of the dispute as to the entitlement of the defendant to commission. They agreed that the Exclusive Sale Authority did not comply with the Act and that in consequence the defendant was not entitled to retain any commission out of the deposit. They did not agree on what interest should be recovered by the plaintiff nor as to the costs of the proceeding, for reasons which will emerge.

4 The defendant was engaged by the plaintiff under an Exclusive Sale Authority dated 27 January 2017 to sell the Property (Authority). The Authority is in a printed form disseminated by the Real Estate Institute of Victoria Ltd (REIV). That form did not comply with s 49A(c)(iii) of the Act, even though it was a form approved by the Director of Consumer Affairs Victoria. In particular it failed to comply with s 49A(c)(iii) because it did not contain the statement required by s 49A(4)(c), namely:

A statement that the agent is not entitled to retain any rebate and must not charge the client an amount for any expenses that is more than the cost of those expenses.

5 The Property was sold under a contract dated 16 February 2017 for the sum of $1,385,000 payable by a deposit of 10 per cent at the date of contract with the balance due upon the giving of vacant possession. Settlement and the giving of vacant possession took place on 28 April 2017. On that date the plaintiff became entitled to the deposit in accordance with s 24 of the Sale of Land Act 1962 (Vic) (SLA).

6 The provision for the defendant's commission on the sale in the Authority was as follows:

A commission (including GST) being the following % of the sale price:

2.2% of selling price up to $1,278,000. Any amount over $1,278,000 to be split 50% to the vendor and 50% to the Agent.

Dollar amount of estimated commission:

$39,116 which includes GST of $3,556 if sold at a GST inclusive price of $1,300,000.

7 The Authority provided that the plaintiff irrevocably authorised the defendant to deduct the professional fees properly incurred and state and federal taxes required to be deducted by law, including GST, from the deposit monies held by the defendant.

8 The amount of commission claimed by the defendant was $81,616 made up of a commission of 2.2 per cent on $1,278,000 ($28,116) and 50 per cent of the difference between the figure of $1,278,000 and the sale price of $1,385,000, being $107,000 ($53,500). The balance of the deposit due to the plaintiff amounted to the sum of $56,884.

9 The decision of the Court of Appeal in the Advisory Services Appeal,[2] which concerned an Exclusive Sale Authority which also did not contain the rebate statement required by s 49A(4)(c), was to the effect that by virtue of s 50(1) of the Act the agent was not entitled to sue for or recover or retain any commission or money in respect of the transaction. By the defendant's consent to the declarations made on 4 June 2018, it conceded that it was not entitled to retain out of the deposit monies any commission or other monies.

10 This proceeding was commenced by originating motion filed on 4 August 2017. In its original form, the originating motion sought a declaration that the authority did not comply with s 49A(1)(c)(ii) of the Act. Section 49A so far as relevant, provides:

(1) An estate agent must not obtain, or seek to obtain, any payment from a person in respect of work done, by, or on behalf of, the Agent or in respect of any outgoings incurred by the agent unless-

(a) the Agent holds a written engagement or appointment that is signed by the person (or the persons' representative); and

(b) ... (not relevant)

(c) the engagement or appointment contains-

(i) details of the commission and outgoings that has been agreed; and

(ii) if a fee is to be calculated on a percentage basis, a statement of that fee expressed as both a percentage and as a dollar amount that would be payable on the reserve price or any other relevant amount set out in the engagement or appointment; and

(iii) a rebate statement that complies with sub-s (4)...

11 The plaintiff contended that the commission provision set out above did not comply with the requirements of s 49A(1)(c)(ii) (the commission requirement) and the originating motion thus sought a declaration that by virtue of s 50(1)(b) of the Act,[3] the defendant was not entitled to retain any commission for or in respect of the sale of the Property, together with a declaration that the plaintiff was entitled to the sum of $138,500 held by the defendant's solicitors, being the deposit paid under the contract of sale, together with interest pursuant to statute and costs.

12 Before the proceeding was commenced there had been correspondence between the solicitors acting for the parties which culminated in the defendant agreeing that the deposit monies should be transferred to the defendant's solicitor's trust account pending resolution of the dispute. On 21 April 2017, the solicitors for the defendant gave an undertaking not to distribute the deposit pending resolution of the dispute with Mr Greg Sutherland, until otherwise agreed by the parties.[4] At that time, the plaintiff's present litigation guardian, Mr Gregory Sutherland, was acting for his mother pursuant to an enduring power of attorney. The correspondence between solicitors included allegations on behalf of the plaintiff that the defendant took unconscientious advantage of the plaintiff who had a cognitive impairment, and that the Property had been sold at an undervalue.[5] The allegation that the defendant had taken advantage of the plaintiff concerned, of course, the commission provision that allowed the defendant a commission of 50 per cent of the sale price over the sum of $1,278,000. It no doubt seemed self-evident that no rational person in the position of the plaintiff in this case with a residential property in Beaumaris would, if properly in possession of their senses, enter into a commission agreement of that kind.

13 Nevertheless, the defendant's solicitors maintained that the plaintiff's instructions were clear, that she wanted to appoint the defendant as a 'fresh face' to sell her property to Chinese and she wanted a sale price of more than $1,000,000, but she did not want to go to auction. It was said that the commission structure is a standard commission structure for the defendant's agency and any allegation that the defendant acted unconscionably was vigorously denied.[6]

14 After these initial skirmishes, the plaintiff obtained advice of Counsel that the authority did not comply with the commission requirement of the Act, and that advice was sent under cover of a letter dated 25 May 2017 to the defendant's solicitors. That letter demanded return of the deposit without deduction of any commission by 1 June 2017, failing which proceedings would be commenced in this Court seeking a declaration that the defendant is not entitled to any commission by virtue of s 50(1)(b) of the Act.[7]

15 The defendant responded at length by letter dated 2 June 2017, countering the arguments advanced by Counsel's advice and in the earlier correspondence which raised the contention, amongst others, that the defendant had taken unconscientious advantage of the plaintiff in relation to the commission provision of the Authority.[8]

16 Further demands by the plaintiff for the release of the deposit, and whether the solicitors for the defendant had instructions to accept service of process, were made by letters from the plaintiff's solicitor dated 14 June and 5 July 2017.[9] On 6 July 2017, the defendant's solicitors responded that they had instructions to accept service of proceedings, amongst other things.[10]

17 The proceeding was commenced on 4 August 2017 in the Professional Liability List and served on 10 August 2017.[11] The declarations sought relied on non-compliance with the commission requirement of the Act (s 49A(1)(c)(ii)). It was supported by affidavits of Gregory John Sutherland, made on 1 August 2017, and the first Gioutlou affidavit sworn by the solicitor for the plaintiff. The Sutherland affidavit gave an account, on information and belief, of the circumstances in which the Authority came to be given by the plaintiff, including conversations with the plaintiff that showed she did not understand the commission provision. He purported to give evidence as to the plaintiff's impaired cognitive function as a result of her advanced age - 92. He also gave evidence as to the entry into an earlier contract of sale that the purchaser had terminated under the cooling off provisions, and the allegedly wrongful retention by the defendant of a half of a holding deposit that had been forfeited by that purchaser, none of which was relevant to the actual basis of the claim made in the originating motion.

18 The proceeding came on for directions before Macaulay J. Counsel for the plaintiff stated that the case was confined to the issue of compliance with the commission requirement in the Authority and that there was no other matter, such as the cognitive impairment of the plaintiff, that the plaintiff wished to agitate. His Honour ordered that the further hearing of the originating motion be referred to an Associate Judge for hearing on 31 October 2017 on an estimate of half a day confined to the issue of the compliance of the Authority with s 49A(1)(c)(ii) of the Act, and whether by virtue of s 50(1)(a) of the Act the defendant is entitled to recover or retain commission on the sale. He made directions for the filing of affidavits and outlines of submissions and ordered an early judicial mediation. He specifically reserved the question of the entitlement of the plaintiff to the costs of the affidavits of Mr Sutherland and Mr Gioutlou, save for the production of the Authority. The transcript of the hearing before Macaulay J on 18 August 2017 reveals that the reason for this was that most of the material in those affidavits was irrelevant to the only issue that the plaintiff sought to agitate in the application.[12]

19 That transcript also reveals that Counsel for the plaintiff raised before the Court the fact that the solicitor for the defendant retained the full amount of the deposit, a sum greater than the maximum amount of commission the defendant was entitled to recover or retain if successful. Counsel for the plaintiff submitted that s 24 of the SLA provides, in effect, that after settlement of the contract (when the purchaser becomes entitled to a transfer of the land) the vendor becomes entitled to the deposit moneys. His Honour remarked, in relation to the sum of about $56,000 being the difference between the deposit money held and the amount of the commission:

If the defendant, properly advised, chooses to pay that back, that might save them ultimately, if they've wrongfully withheld at least a component of it, interest at the penalty interest rate which should be vastly above what you will get putting it in a bank account at the moment.[13]

20 On 29 August 2017, the Hon. Judge Marks published her reasons in Advisory Services Pty Ltd v Augustin.[14] In consequence of publication of those reasons, by letter dated 13 September 2017, the plaintiff put the defendant on notice that it intended to apply to amend the originating motion to include a declaration that the Authority did not comply with s 49A(1)(c)(iii) of the Act (the rebate requirement).[15] The defendant responded that it would strenuously oppose the application, for a variety of reasons.

21 By summons filed 2 October 2017, the plaintiff sought to make that amendment. It came on before me on 3 October 2017 and the leave was granted, with a variety of consequential orders, including that the defendant's costs thrown away by reason of the amendment of the originating motion be paid by the plaintiff. The defendant did not strenuously oppose the amendment. The other orders include provision for service of a third party notice by the defendant, the filing of further affidavits and a re-scheduling of the mediation previously ordered. The amended originating motion was filed on 5 October 2017.

22 Also on 5 October 2017, the plaintiff's solicitor wrote to the defendant's solicitor pointing to the comments of Macaulay J referred to above, and requested the balance of the deposit moneys, after allowing for retention of the commission claimed by the defendant, be released to the plaintiff.[16] There is no evidence of any response to this request.

23 The defendant filed its third party notice against the REIV on 27 October 2017. The REIV appeared on 10 November 2017 and filed its defence on 8 December 2017. Meanwhile, the proceeding came back before the Court for further directions on 21 November 2017, at which time the Court was informed:

(a) that the plaintiff intended to apply for an order under r 47.04 of the Supreme Court (General Civil Procedure) Rules 2015 (the Rules) that the issues in dispute between the plaintiff and the defendant in the proceeding be tried separately before the trial of the proceeding;

(b) the plaintiff and defendant proposed to collaborate with a view to settling the questions to be stated for the purpose of r 47.04 of the Rules, and required time to do so;

(c) the third party reserved its position in relation to the trial of any separate questions;

(d) there was an appeal from the decision of the County Court of Victoria in Advisory Services Pty Ltd v Augustin [2017] VCC 1195. The parties sought, if possible, to await the determination of that appeal before the trial of any separate question between the plaintiff and defendant.

24 In consequence, the order for a mediation was vacated and provision was made for an application to be made for the trial of separate questions pursuant to r 47.04 of the Rules on 14 February 2018. That date was not met, for reasons that are not revealed, and the parties co-operated in agreeing to an adjournment on 13 February 2018. The application for the trial of separate questions was heard on 19 March 2018 and orders made for the trial of 3 separate questions:

(a) the first question directed to whether the Authority complied with the commission requirement (s 49A(1)(c)(ii) of the Act);

(b) the second directed to whether the Authority complied with the rebate requirement (s 49A(1)(c)(iii) of the Act); and

(c) the third directed to whether if the answer to either questions 1 or 2 is 'no', whether s 50(1)(b) of the Act prevents the defendant from retaining any commission in respect of the sale of the Property.

25 The parties requested, and I agreed, that the determination of the second question should be deferred pending judgment of the Court of Appeal in the Advisory Services Appeal,[17] which concerned an identically worded authority form. The trial of the other questions was fixed for 18 July 2018 and directions were made for the filing of submissions.

26 I also indicated my concern that the plaintiff may be a handicapped person (within the meaning of Order 15 of the Rules) and expressed a desire that the plaintiff's solicitor have an assessment undertaken of the plaintiff's mental capacity bearing in mind that the relevant test is whether the plaintiff by reason of injury, disease, senility, illness or physical or mental infirmity is incapable of managing her affairs in relation to the proceeding.[18] I indicated that if the assessment revealed that the plaintiff is not capable of managing her affairs in relation to the proceeding, it would be necessary for the solicitor for the plaintiff to identify an appropriate litigation guardian and apply for the appointment of that person as litigation guardian for the plaintiff in accordance with r 15.03 of the Rules.

27 On 19 April 2018, the Court of Appeal handed down its reasons in the Advisory Services Appeal,[19] upholding the decision of Judge Marks that the particular Authority in that case did not comply with the rebate requirement (s 49A(1)(c)(iii) of the Act) and that the agent was not entitled to recover or retain commission on the sale in that case.

28 By letter dated 16 May 2018, the plaintiff's solicitors wrote to the defendant's solicitors contending that in consequence of the decision in the Advisory Services Appeal[20] the plaintiff is entitled to the relief it seeks in its amended originating motion, save in respect of the declaration that the Authority does not comply with the commission requirement. It was said that the plaintiff's Counsel remained confident that the Authority did not comply with that provision, but in light of the decision of the Court of Appeal there was no utility in determining the question, nor would the determination of that question be in conformity with the parties obligations under the Civil Procedure Act 2010 (Vic). A proposal was made to limit costs payable by the defendant to those incurred from the time of the directions hearing at which leave was granted to amend the originating motion to include the claim based upon non-compliance with the rebate requirement, namely 3 October 2017. The plaintiff urged the defendant to return the deposit moneys.[21]

29 By letter dated 21 May 2018, the defendant's solicitors acknowledged that the Authority did not comply with the rebate requirement of the Act and that in consequence the defendant was not entitled to retain any commission. The defendant's solicitor had released the deposit moneys to the plaintiff's solicitor on 18 May 2018.[22]

30 By summons filed on 25 May 2018, the plaintiff applied for Gregory John Sutherland to be appointed litigation guardian for his mother, the plaintiff. The summons was supported by an affidavit of Mr Sutherland, which also acknowledged that the defendant had returned the deposit moneys on 18 May 2018 and that the only issues between the plaintiff and defendant concerned interest on the deposit moneys and costs.[23]

31 By letter dated 1 June 2018, the defendant's solicitor wrote to the plaintiff's solicitor putting various arguments concerning the costs of the proceeding and interest on the deposit moneys, including that:

(a) because of the withdrawal of the claim that the Authority did not comply with the commission requirement of the Act, the plaintiff should pay the defendants costs of the defence of that part of the claim; and

(b) because the plaintiff did not advise the defendant until 16 May 2018 that it did not wish to proceed with the determination of the question whether the Authority failed to comply with the commission requirement, the plaintiff could only claim interest for the period between 16 May 2018 and the release of the deposit moneys on 18 May 2018 and transferred $37.95 to the plaintiff's trust account.

32 The proceeding came before me on 4 June 2018, both for the hearing of the application for the appointment of a litigation guardian for the plaintiff and on an application by the REIV to join the Director of Consumer Affairs as a fourth party. At that hearing, by consent, I made declarations that the Authority did not comply with the rebate requirement of the Act and that, by virtue of s 50(1)(b) of the Act the defendant is not entitled to any commission on the sale of the Property. The trial of the separate questions was vacated. I ordered by consent that the plaintiff is entitled to the deposit moneys, which had been paid, together with interest and costs to be determined. Directions were made as to the filing of affidavits and submissions relevant to the issues of interest and costs. Mr Sutherland was appointed litigation guardian for the plaintiff and the REIV was granted leave to commence fourth party proceedings. Subject to the determination of the questions of interest and costs, the proceeding by the plaintiff against the defendant was stayed.

33 The applicable principles in relation to costs were not in dispute. So far as relevant to the present dispute, the principles may be stated as follows:

(a) unless otherwise expressly provided by any Act or by the Rules, the costs of and incidental to all matters in the Supreme Court are in the discretion of the Court, and the Court has full power to determine by whom and to what extent the costs are to be paid: Supreme Court Act 1986 (Vic) (SCA) s 24(1);

(b) the discretion regarding costs has been described as absolute, unconfined or unfettered, although that discretion must be exercised judicially, that is, not by reference to irrelevant or extraneous considerations, but upon facts connected with or leading up to the litigation;[24]

(c) in the exercise of the discretion, practices or guidelines have been developed.[25] These practices or guidelines are not legal rules that confine the exercise of the discretion;[26]

(d) there is a settled practice (sometimes called a general rule) that in the absence of good reason to the contrary a successful litigant should receive his or her costs.[27] It is not, however, a legal rule devised to control the exercise of the discretion.[28] Where the general rule applies it generally has the result that the successful party should be entitled to the whole of its costs;[29]

(e) the general rule has traditionally been described as the costs 'following the event', meaning that the party who wins has the costs paid by the other side. But the 'event' which, in accordance with the general rule, determines the disposition of costs is not limited to the ultimate fate of the litigation but may extend to the fate of each and every issue argued in the proceedings;[30]

(f) if each party succeeds on a discrete issue it may be entitled to the costs of that issue.[31] In this regard, r 63.04 of the Rules provides specific authority by providing that the Court may make an order for costs in relation to a particular question in or a particular part of a proceeding. This power permits orders depriving an ultimately unsuccessful party of its costs, or a part of its costs, or by awarding an unsuccessful party some part of its costs;[32]

(g) not only may an ultimately successful party be deprived of costs of particular issues on which the party failed, the party may be ordered to pay the costs of the other party of those issues. For this purpose, 'issue' does not mean a precise issue in the technical pleading sense but any disputed question of fact or of law.[33] The power should be exercised only where the Court, on a consideration of all the circumstances, concludes that the raising of the issue was so unreasonable that it is fair and just to make the order;[34]

(h) further, an overall order may be made reflecting these matters so as to obviate the need to tax two bills of costs. Where such an order is made, a party ordered to pay some proportion only of a successful party's costs does not receive any reimbursement for its own costs except to the extent that the reduction may be seen as a set-off against its own liability;[35]

(i) where there has been no hearing on the merits in relation to a question or issue, so that no party has succeeded, either in the proceeding or in relation to the question or issue, the Court is deprived of the factor that usually determines whether or how it will make an order as to costs. If both parties have acted reasonably in commencing and defending the proceeding and their conduct continued to be reasonable until the litigation was settled or its further prosecution became futile, making no order as to costs may be the proper exercise of discretion;[36]

(j) the purpose of a costs order is to compensate the successful party for the costs incurred, and not to punish the unsuccessful party. That purpose is a guide to the exercise of the discretion_;_[37]

(k) in the exercise of its discretion the Court may take into account any misconduct by the parties, including that which extends the length or increases the costs of the proceeding.[38]

34 Section 58(1) of the SCA provides, so far as relevant:

If in a proceeding a debt or sum certain is recovered, the Court must on application, unless good cause is shown to the contrary, allow interest to the creditor on the debt or sum at a rate not exceeding the rate for the time being fixed under section 2 of the Penalty Interest Rates Act 1983...from the time when the debt or sum was payable (if payable by virtue of some written instrument and at a date or time certain) or, if payable otherwise, then from the time when demand of payment was made.

35 This section needs to be read with s 60 which provides, in effect, that in any proceeding for the recovery of debt or damages, in cases to which s 58 did not apply, the Court must, unless good cause is shown to the contrary, give damages in the nature of interest at such rate not exceeding the rate for the time being fixed under s 2 of the Penalty Interest Rates Act 1983 (Vic) (PIRA) as it thinks fit from the commencement of the proceeding to the date of the judgment. Decisions on the construction of s 60 are often relevant to the construction of s 58, and vice versa, because of the similarity in the terminology and the interrelationship between them.[39]

36 Section 58 has been given a beneficial construction. Its purposes are:

(a) to compensate parties who have been obliged to take 'proceedings' to recover a money sum and who in the meantime have been kept out of moneys which they could otherwise have used or upon which they could otherwise have earned interest;[40]

(b) to encourage the early resolution of litigation.[41]

37 Bearing in mind that the section imposes an obligation on the Court to allow interest where the circumstances make the section applicable ('must on application'), there are two elements involved in an interest determination made under s 58:[42]

(a) whether the obligation to allow interest in the particular case is qualified by good cause shown to the contrary;

(b) the determination of the appropriate rate of interest. This is a question of discretion for the Court and does not depend upon establishing good cause to the contrary.

38 The onus is on the defendant to show good cause against an allowance of interest.[43] The good cause must be measured against the purposes of the statutory power to award interest and thus is referrable to the statutory power and is not a discretion 'at large'.[44] Delays in the litigation by the defendant do not generally constitute good cause.[45] Where the defendant has had use of the money in question, delay by the plaintiff is rarely a justifiable basis for refusing interest for any period,[46] but the plaintiff's delay after demand may be relevant to the determination of 'good cause to the contrary' and may, depending on the facts of the case, justify the exercise of the discretion 'to relieve against injustice to the defendant'.[47] This may justify disallowance of interest for part of the period prior to the date of the writ, as, for instance, where the plaintiff after demand for payment has delayed unduly in commencing the proceeding.[48]

39 Once good cause has been shown to the contrary, the Court:[49]

(a) is free of the injunction to allow interest according to the terms of s 58(1) (so that in a proper case interest may be refused altogether); and

(b) is authorised, by implication, to allow interest otherwise than in accordance with those terms.

40 The Appeal Division made clear in Clarke v Foodland Stores[50] that this does not mean that the Court is then wholly at large; for the Court cannot by virtue only of s 58 allow interest on terms more onerous to the defendant than those spelled out in the section. The discretion that is conferred upon the Court once good cause has been shown empowers the Court to relieve against injustice to the defendant, so that the Court may refuse to award interest at all or may award interest on terms which are less, but not more, onerous than those laid down by the section. The Court always has a discretion as to the rate of interest (subject only to the maximum imposed by s 58). This means, in effect, that once good cause is shown, the Court may allow interest to the plaintiff for a lesser period than that marked out by the section.[51]

41 And it is clear that 'good cause to the contrary' means no more and no less than good reason, according to the justice of the case, for not allowing interest at all or, if interest is to be allowed, then for not allowing interest for the whole of the period marked out by the section.[52]

42 It is convenient to begin by setting out the defendants submissions as it bears the onus of showing good cause to the contrary under s 58 of the SCA.

43 At the hearing on 4 June 2018, at which the declarations were made by consent, I pressed the defendant to make its submissions in relation to costs and interest, but was met with an extensive argument that it was necessary to introduce evidence and to prepare full argument, and that resulted in the orders to which I have referred above at [32].

44 At the outset, in the defendant's outline of written submissions, it sought orders and declarations as follows:

(a) an order that the plaintiff pay the defendant's costs of and incidental to the originating motion filed on 4 August 2017, limited from 4 August 2017 to 3 October 2017 (inclusive);

(b) a declaration that the plaintiff is entitled to interest pursuant to s 58 of the SCA on the amount of $138,500.00;

(c) a declaration that interest be calculated between 16 May 2018 and 18 May 2018;

(d) a declaration that on 1 June 2018 the defendant paid the required interest to the plaintiff;

(e) a declaration that any costs to which the plaintiff is entitled be assessed by reference to either:

(i) appendix A, scale of costs, which forms part of the Magistrates' Court General Civil Procedure Rules 2010 (Vic); or alternatively

(ii) 80 per cent of the applicable rate set out in appendix A to ch 1 of the Rules of the Supreme Court.

45 In relation to the interest payable upon the deposit monies returned on 18 May 2018, the defendant contended, in substance, that the obligation arising upon the defendant under its undertaking to preserve the deposit until the resolution of the dispute meant that it was not until 16 May 2018 that the dispute could be deemed as at an end. It was on that day, for the first time, that the plaintiff expressly stated it no longer intended to press its application for a declaration that the authority failed to comply with the commission requirement and that the proceeding should otherwise come to an end.

46 The defendant contended that, in those circumstances, the plaintiff should be entitled to interest on the deposit but that it should be calculated by reference to the date the dispute came to an end, namely 16 May 2018 so that interest was only due for the period between 16 and 18 May 2018. A sum for interest for that period had been paid to the plaintiff's solicitors (see [31(b)] above).

47 If, on the other hand, the Court is of the view that the undertaking does not preclude the claim by the plaintiff for interest, then the defendant submitted that interest should only run from the date that the originating motion was amended on 3 October 2017 to include a claim based on the rebate requirement. Before that time the claims made, both in correspondence and then in the originating motion, referred only to matters that the plaintiff did not ultimately press.

48 Further, the defendant submitted that the Court should in the circumstances disallow any interest arising before 4 August 2017 (the filing date) given the delay in the plaintiff commencing the proceedings between the date the demand was made on 25 May and the date of commencement of the proceeding. The defendant pointed to the authorities that have held that the Court can disallow interest for a period of time,[53] or set the interest rate at a lower level than the statutory rate,[54] where there has otherwise been unreasonable delay in the commencement or prosecution of the proceeding.

49 There is no suggestion, the defendant submitted, that the plaintiff could not afford to bring the claim before 4 August 2017 and there is no other explanation for the delay.

50 The defendant further submitted that if the Court was against it on all the matters set out above, it was correct for the defendant not to pay the deposit to the plaintiff before the Court of Appeal heard and determined the Advisory Services Appeal.[55] Interest should only be allowed from the date that the Court of Appeal handed down its decision (19 April 2018) to the date of payment on 18 May 2018. It was said that the separate question ordered to be tried as to whether the Authority complied with the rebate requirement necessarily turned on the determination of the Advisory Services Appeal.[56]

51 In relation to the costs of the proceeding, the defendant submitted that the plaintiff should only be allowed costs from 4 October 2017 as the originating motion was only amended on about 3 October 2017 to include the claim for a declaration upon which, ultimately, the proceeding turned. No other parts of the plaintiff's claim have succeeded and instead have been withdrawn and permanently stayed. It was also said that:

(a) the plaintiff's material filed in support of the originating motion was heavily criticised by Macaulay J at the first directions hearing on 18 August 2017, which resulted in an express order reserving the question of costs occasioned by that material;

(b) the plaintiff should have brought the relatively minor claim in the County Court.[57]

52 The plaintiff contends that it is entitled to interest pursuant to s 58(1) of the SCA on the whole of the deposit monies from the date the demand was made on 25 May 2017 to the date it was repaid.

53 The plaintiff identifies two components of the amount paid by the defendant on 18 May 2018. There is the amount of $81,616.00 claimed by the defendant as commission. Then there is the balance, $56,884.00, in respect of which there is no basis for the defendant to retain that sum after settlement of the contract of sale on 28 April 2017.

54 The plaintiff therefore submits that at the minimum there should be interest payable at the rate from time to time fixed under the PIRA on the sum of $56,884.00 from the date of demand on 25 May 2017. The plaintiff also submits that good cause has not been shown to the contrary to the allowance of interest from the date of demand on the amount of the commission. The sum of $81,616.00 is a sum to which, as the decision of the Court of Appeal in the Advisory Services Appeal[58] shows, the defendant was never entitled by virtue of s 50(1)(b) of the Act. Indeed, that is what the consent orders declared to be the case.

55 The undertaking given by the defendant to retain the full amount of the deposit monies in its solicitor's trust account pending the resolution of the proceeding does not affect this outcome, in the plaintiff's submission. The purpose of the demand for the keeping of the deposit monies in the defendant's solicitor's trust account was to ensure that the deposit was not paid over to the defendant. It was, in any event, held subject to agreement between the parties and that qualification was available to be used to ensure that the monies returned a rate of interest and that the sum in excess of the commission claimed was paid over to the plaintiff.

56 In relation to the question of costs, the plaintiff submitted that she has succeeded in her claim and that, accordingly, the costs should follow the event. The plaintiff concedes that the costs of the affidavit of Gregory John Sutherland sworn 1 August 2017 should be excluded from these costs, as should the costs thrown away by the amendment of the originating motion. Contrary to the defendant's submission, the plaintiff's submits that it was quite proper to bring the proceeding in this Court because it has a dedicated list for matters of this nature and procedures for case management which are said to be unavailable in the County Court and the proceeding raises issues of importance to vendors of real estate and estate agents generally.

57 The plaintiff submitted that there should be no apportionment of costs in relation to the plaintiff's original claim based on s 49A(1)(c)(ii) of the Act. This is not a case where the plaintiff discontinued one of several claims made against the defendant or brings two claims but succeeds on one and fails on the other. Instead the plaintiff's claim based on the failure to comply with the commission requirement is, by virtue of the Court's order on 4 June 2018, forever stayed and there has been no adjudication of it on the merits. The plaintiff should, accordingly, suffer no costs penalty as a consequence. It would have been futile for the plaintiff to pursue the claim in the circumstances where she has already succeeded in obtaining the relief sought against the defendant based upon the decision in the Court of Appeal in the Advisory Services Appeal,[59] which turns on the application of the rebate requirement.

58 Moreover, the agitation by the plaintiff of the issue or question of non-compliance with the commission requirement has not prolonged the litigation or led the defendant to incur any further legal costs unnecessarily. Further, there should be no apportionment of costs on account of the plaintiff having amended the originating motion on 3 October 2017 to include the claim based on non-compliance with the rebate requirement. It was neither unreasonable nor improper for the plaintiff to have agitated only non-compliance with the commission requirement in the originating motion as originally framed as that originating motion was issued before the decision of the County Court in the Advisory Services litigation.

59 There cannot be any doubt that the plaintiff has succeeded in its claim that the defendant is not entitled to commission on the sale of the Property. To that extent the starting point in my opinion is that the costs should follow that event. The defendant, however, contends that it succeeded on an aspect of the entitlement of the defendant to commission. The defendant's point, in substance, is that the plaintiff should not have her costs in respect of that part of the claim which has not been heard and determined. I do not accept that in the circumstances of this case that the particular ground for denying the defendant its commission is the critical point. What is critical is that the plaintiff contended that the defendant was not entitled to commission and succeeded.

60 When the Court of Appeal handed down its reasons for decision in the Advisory Services Appeal[60] the plaintiff determined not to proceed with that part of its claim which turned on whether the provision in the Authority relating to commission complied with the commission requirement. This was entirely proper. There could be no utility in pursuing an argument on that ground when the plaintiff had already succeeded, by virtue of the Court of Appeal's reasons, on its ground based upon the rebate requirement. Because there has been no adjudication on the merits of failure of the defendant to comply with the commission requirement, it is not an appropriate vehicle for awarding the defendant the costs. Had the matter been agitated and the plaintiff had failed on that issue, then it may have been appropriate to award costs to the defendant.

61 It may also have been appropriate for the Court to order that the plaintiff pay the defendant's costs of that issue where, in all the circumstances of the case, the Court concluded that the raising of the issue was so unreasonable that it is fair and just to make such an order. That is not this case. In my view, looking at the matter objectively, there was a reasonable basis to support the commencement of the proceeding based upon non-compliance with the commission requirement. Moreover, the plaintiff gave to the defendant its advice of Counsel on an open basis in an attempt to persuade the defendant that the argument was a good one.

62 Where there has been no adjudication of the issue, and the issue was reasonably arguable, the best that the plaintiff is entitled to, in my view, is that there be no order as to the costs of the parties in respect of that issue (see above at [33(i)]).

63 In these circumstances, it was both reasonable and appropriate for the plaintiff to raise for determination by the Court the issue of whether the Authority complied with the commission requirement. It is therefore not appropriate for there to be an order that the plaintiff pay the defendant's cost of this issue. Whether it is appropriate to provide that the costs of this issue be borne by them, so that those costs should lie where they fall, is more problematic.

64 It has to be remembered that the ultimate question was compliance of the Authority with the provisions of the Act. The separation of the costs of particular issues is often difficult and time consuming and for that reason self-defeating, because of the costs incurred in doing so. The solution, in the circumstances of this case, is to reduce the costs the defendant must pay to the plaintiff by 10% to reflect the fact that there has been no determination of this issue and some costs have been wasted. The alternative, offered by the plaintiff and suggested by the defendant as a fall-back position, is only to allow the plaintiff's costs from the date of the amendment. That would exclude costs incurred which are relevant to both issues, such as the costs of the issue of the proceeding, and no doubt other costs. Given that a part of the costs incurred by the plaintiff in initiating the proceeding (the affidavit of Mr Sutherland of 1 August 2017) are agreed should not be allowed to the plaintiff, in the exercise of my discretion, and using a broad brush, I consider the reduction of a percentage overall is likely to be fairer.[61]

65 The next question is whether or not the costs should be calculated in accordance with the rate applicable in the County Court of Victoria. In this context, it is well to recall that Macaulay J raised the question of the appropriateness of the proceeding for determination in this Court, having regard to the amount in dispute, at the directions hearing on 18 August 2017. The manner in which his Honour determined to address that issue was to refer the matter for hearing on the short point raised in the originating motion, compliance with the commission requirement, to an Associate Judge, together with a referral of the matter to a judicial mediation. In other words, the orders of Macaulay J made on 18 August 2017 catered for the very point that the defendant now complains should be accommodated by reducing the applicable costs rate to 80 per cent of the Supreme Court Scale. In my view, because the matter has been dealt with reasonably expeditiously, and very sensibly on the part of the plaintiff, there should be no reduction in the rate of the costs payable by the defendant to the plaintiff.

66 There was no dispute that the plaintiff was entitled to some interest pursuant to s 58 of the SCA. That is notwithstanding that the proceeding was one commenced seeking only declarations rather than the recovery of a debt or sum certain. That is because, the parties had agreed that the plaintiff was entitled to that sum with interest and costs to be determined. It is no barrier to the recovery of interest pursuant to s 58 that the proceeding was not one for the recovery of a debt or sum certain.[62]

67 Nor was there any dispute that the plaintiff was a creditor and that the deposit payable to the plaintiff was a debt or sum certain.[63]

68 There were two components to the argument by the defendant that it had shown 'good cause to the contrary' in relation to the interest. The first turned on the undertaking given by the solicitor for the defendant to hold the monies in its trust account until otherwise agreed by the parties, pending resolution of the dispute. I have difficulty following this submission given that the undertaking was always subject to agreement to the contrary. It was always within the power of the defendant to repay at least that part of the deposit monies that was not claimed by way of commission. Indeed Macaulay J pointed out the consequences of not doing so at the directions hearing on 18 August 2017, as I have related (see above at [19]). It seems that the substratum of this submission made by the defendant is that the undertaking provided a form of 'lock' which could not be broken and prevented the repayment of the deposit monies or any part of them unless and until the plaintiff allowed that course to happen. There is no evidence of any attempt on the part of the defendant to negotiate the return of that part of the deposit that was not claimed as commission, or even seeking to do so after adding interest on that commission. Nor was there any evidence of any attempt to negotiate with the plaintiff to have the deposit monies paid into an interest bearing trust account. In light of these matters, it seems to me the proposition advanced is unsound and I do not accept that this shows cause to the contrary under s 58 of the SCA.

69 That is not the end of that contention however. The undertaking was given on 21 April 2017 by the defendant's solicitor at the insistence of the plaintiff's solicitor who threatened, absent such an undertaking, to make a complaint to Consumer Affairs Victoria of the conduct of the defendant. I was informed by the parties, and it is my understanding, that under the Legal Profession Uniform General Rules 2015 interest on a solicitor's trust account is paid into the Public Purpose Fund, which is administered by the Victorian Legal Services Board. Thus there is no benefit to the defendant in the holding of the monies in the solicitor's trust account. Once again, it was always open to the defendant to seek to have the monies held in a special purpose account which bore interest, but that was not done. Both parties bear some responsibility for the fact that the deposit monies earnt no interest for them during the period they were held in trust, and some adjustment needs to be made in the allowance for interest to the plaintiff for this reason. In the exercise of the Court's undoubted discretion as to the rate of interest to be applied to the debt or sum certain, I will reduce the interest rate on the commission component of the deposit monies from the prescribed rate of 10% to 8% for the entire duration from 25 May 2017 to 18 May 2018.

70 It is next said that the delay between the demand on 25 May 2017 and the commencement of the proceeding on 4 August 2017 was too long and the delay over this period shows cause to the contrary for the purposes of s 58 of the SCA and some part of that period should be disallowed in any interest calculation.

71 The defendant pointed to the decision of Tadgell J in David Leahey (Aust) Pty Ltd v McPherson's Ltd[64] as an illustration of the Court disallowing interest for a period of time by reason of delay. In that case, however, there was an unexplained delay of 11½ months between the making of the demand and the commencement of the proceeding and Tadgell J allowed a reduction, taking a broad brush, of two and half months. Before so concluding he noted:

It was said for the defendant that the delay of some 11½ months between the plaintiff's demand for payment by its invoice and the issue of the writ was unexplained and that, for that reason, the plaintiff should not have interest during any of that period. Remembering that the onus lies on the defendant to show cause under s 58(1), I cannot conclude that mere unexplained delay between demand and writ is sufficient to do so, at least in the circumstances of this case. That is to say, it does not appear to me, as a general proposition, to be unjust to the defendant to allow the section to take its course, or to be just to the plaintiff to say that it should not take its course, merely because the plaintiff took 11½ months to issue proceedings after sending its invoice. ...[65] [emphasis added]

72 He nevertheless concluded that it was unreasonable to allow interest over the whole period between demand and commencement of the proceeding and reduced it, as I have said, by two and a half months.

73 In this case, as the account I have given above shows, there was correspondence following the demand on 25 May 2017. There was a lengthy response by letter from the defendant's solicitor on 2 June 2017 countering the arguments advanced in the plaintiff's Counsel's advice and arguments raised in earlier correspondence. There were further demands by the plaintiff for the release of the deposit which went unanswered for some time. It was not until 6 July 2017 that the defendant's solicitors responded and informed the plaintiff's solicitors that they had instructions to accept service of proceedings. The delay between that date and the commencement of the proceeding on 4 August 2017 is not, in the circumstances of this case, an undue delay and does not, in my opinion, show cause the contrary under s 58 of the SCA. Accordingly, in my view there should be no reduction in the period over which any interest is calculated by reason of delay in the commencement of the proceedings.

74 The next contention of the defendant against an award of interest was that it was reasonable for the defendant not to repay the deposit before the Court of Appeal heard and determined the Advisory Services Appeal.[66] It maintained that interest should only run from the date when the Court of Appeal handed down its decision on 19 April 2018.

75 That is a remarkable proposition. The point raised as to the compliance of the Authority with the rebate requirement was raised by the plaintiff in its proposed amended originating motion shortly prior to 3 October 2017. It succeeded upon that ground. The fact that the success is attributable to the Court of Appeal decision is interesting, but irrelevant. What is significant is that the plaintiff has succeeded on the point it raised in its amended originating motion in October 2017.

76 There was no submission made that the particular interest rate prescribed under the PIRA was not the applicable rate. In my view, the starting point for the calculation of interest is that interest at the prescribed rate should be applied to the non-commission part of the deposit monies, $56,884.00, from 25 May 2017 to 18 May 2018. The prescribed rate has been stable at 10% per annum since 1 February 2017, resulting in a sum for interest on that amount of $5,579.31 (358 days).

77 With respect to the balance of the fund, $81,616.00 (the disputed commission), I consider that, taking a broad brush, it would be unjust to the defendant to allow interest at the prescribed rate for the whole of the period having regard to the fact that the deposit monies were held in a trust account not bearing interest to the parties. I consider a reduction in the applicable interest rate from 10% per annum (the prescribed rate) to 8% per annum gives due acknowledgement to the contribution of the plaintiff to this situation. This gives a figure of $6,404.06 for the period from 25 May 2017 to 18 May 2018 (358 days).

78 There is no dispute that the plaintiff is not entitled to the costs of the affidavit of Mr Sutherland sworn 1 August 2017 or the costs of amending the originating motion, to which the defendant is entitled by the order made on 3 October 2017.

79 For the reasons set out above, I conclude that the appropriate orders as to costs are that the defendant pay the plaintiff's costs of the proceeding (including the application for interest and costs), excluding:

(a) the costs of the affidavit of Gregory John Sutherland made on 1 August 2017; and

(b) the plaintiff's costs of the application to amend the originating motion,

such costs to be reduced by 10% and by the defendant's costs thrown away by the amendment of the originating motion ordered on 3 October 2017.

80 In relation to the interest to be paid pursuant to s 58 of the SCA, the appropriate orders are that the defendant pay to the plaintiff interest:

(a) on the sum of $56,884.00 from 25 May 2017 to 18 May 2018 at the prescribed rate per annum, fixed in the sum of $5,579.31;

(b) On the sum of $81,616.00 from 25 May 2017 to 18 May 2018 at the rate of 8% per annum, fixed in the sum of $6,404.06.

MARIKA SUTHERLAND (BY HER LITIGATION GUARDIAN GREGORY JOHN SUTHERLAND)

THE REAL ESTATE INSTITUTE OF VICTORIA LIMITED (ACN 004 210 897)

[1] [2018] VSCA 95 (Advisory Services Appeal).

[2] [2018] VSCA 95.

[3] Section 50(1)(b) provides, so far as relevant, that an estate agent is not entitled to sue for or recover or retain any commission for or in respect of any transaction unless the agent has complied with section 49A(1) with respect to the engagement or appointment to undertake the transaction.

[4] Affidavit of Amy Dawn Sheggerud-Woods made 15 June 2018, exhibit ASW-10 (Woods affidavit).

[5] Affidavit of Bill Gioutlou made 2 August 2017, exhibit BG-2 (first Gioutlou affidavit). Woods affidavit, exhibit ASW-6.

[6] First Gioutlou affidavit, exhibit BG-3; Woods affidavit, exhibit ASW-11.

[8] First Gioutlou affidavit, exhibit BG-5; Woods affidavit, exhibit ASW-17.

[9] First Gioutlou affidavit, exhibit BG-6 and BG-7; Woods affidavit, exhibit ASW-18 and ASW-19.

[10] First Gioutlou affidavit, exhibit BG-8; Woods affidavit, exhibit ASW-21.

[12] Transcript of Proceedings, Sutherland v Globe Real Estate Pty Ltd & Ors (Supreme Court of Victoria, 2017/03093, Macaulay J, 18 August 2017), Affidavit of Yu Fang Jiang made 12 September 2017, exhibit YJ-1 (first Jiang affidavit).

[14] [2017] VCC 1195.

[15] Affidavit of Bill Gioutlou made 27 September 2017, exhibit BG-9 (second Gioutlou affidavit).

[16] Affidavit of Sophie Gioutlou made 28 June 2018, exhibit SG-3.

[17] [2018] VSCA 95.

[19] [2018] VSCA 95.

[21] First Woods affidavit, exhibit ASW-24.

[22] First Woods affidavit, exhibit ASW-25.

[23] Affidavit of Gregory John Sutherland made 23 May 2018 [21]-[22].

[24] See for example Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534, 537; cited with approval in Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72, 86 (Oshlack).

[25] Oshlack [1998] HCA 11; (1998) 193 CLR 72, 86.

[26] Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513, 537; Oshlack [1998] HCA 11; (1998) 193 CLR 72, 86.

[27] Ritter v Godfrey [1920] 2 KB 47, 52; Donald Campbell and Co Ltd v Pollak [1927] AC 732, 809 Milne v Attorney-General for the State of Tasmania [1956] HCA 48; (1956) 95 CLR 460, 477.

[28] Oshlack [1998] HCA 11; (1998) 193 CLR 72, 86 [35].

[29] Lollis v Loulatzis (No 2) [2008] VSC 35 [26].

[30] S v Minister for Youth and Community Services (1986) 10 Fam LR 849, 856referred to in Wilson v McDougall (1987) 11 NSWLR 241, 247; LexisNexis, Civil Procedure Victoria (Service 306) [63.02.85] (Civil Procedure Victoria).

[31] APN Funds Management Ltd v Australian Property Investment Strategic Pty Ltd (Costs) [2012] VSC 365 [11].

[32] Civil Procedure Victoria [63.04.0].

[33] Hughes v Western Australian Cricket Assn (Inc) (1986) ATPR 40-748, 48-136 (FCA). Queensland Wire Industries Pty Ltd v BHP Co Ltd (1987) 17 FCR 211, 222; Cummings v Lewis [1993] FCA 180; (1993) 41 FCR 559, 603; Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 [11]; Martech International Pty Ltd v Energy World Corp Ltd (No 4) [2006] FCA 1779; Civil Procedure Victoria [63.04.0].

[34] Mok v Minister for Immigration, Local Government and Ethnic Affairs (No 2) [1993] FCA 650; (1993) 47 FCR 81 ; FAI General Insurance Co Ltd v McSweeney (FCA, Lindgren J, No NG 312/92, 15 September 1998, unreported); Civil Procedure Victoria [63.04.0]. It is not, of course, a fixed principle: Rosniak v GIO (1997) 41 NSWLR 608.

[35] Nolan v Nolan (No 2) [2004] VSCA 134 [17].

[36] Re Minister for Immigration and Ethnic Affairs; Ex parte Qin [1997] HCA 6; (1997) 186 CLR 622, 625.

[37] Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534, 563 (Toohey J, Mason CJ agreeing); 567 (McHugh J); Ohn v Walton (1995) 36 NSWLR 77, 79.

[38] Forbes v Samuel [1913] 3 KB 706; Parkinson v College of Ambulance Ltd [1925] 2 KB 1; Gold v Patman and Fotheringham Ltd [1958] 2 All ER 497; Capolingua v Phylum Pty Ltd (1991) 5 WAR 137 ; Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72, 97 [69]; Amcor Ltd v Barnes (No 5) [2013] VSC 51; Civil Procedure Victoria, [63.02.105].

[39] Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (No.3) [2003] VSC 244 [44] (Johnson Tiles).

[40] Victorian WorkCover Authority v Esso Australia Ltd (2001) 207 CLR 520, 546 (Kirby J). Hosking v Ipex Software Service Pty Ltd (No 2) [2004] VSC 343 (Hosking); Hodgson v Amcor (No 9) [2012] VSC 205 [12]-[14] (Hodgson).

[41] Ruby v Marsh [1975] HCA 32; (1975) 132 CLR 642, 652-653 (Barwick CJ); Clarke v Foodland Stores Pty Ltd [1993] VicRp 81; [1993] 2 VR 382, 396 (Clarke v Foodland Stores); MBP(SA) Pty Ltd v Gogic [1991] HCA 3; (1991) 171 CLR 657, 663; Grincelis v House [2000] HCA 42; (2000) 201 CLR 321, [16] and [29]; Victorian WorkCover Authority v Esso Australia Limited (2001) 207 CLR 520, [69], [92], [109]; GEC Marconi Systems Pty Limited v BHP Information Technology Pty Limited [2003] FCA 688; (2003) 201 ALR 55, 60; Johnson Tiles [2003] VSC 244 [61]; Hodgson [2012] VSC 205 [12].

[42] Clarke v Foodland Stores Pty Ltd [1993] VicRp 81; (1993) 2 VR 382, 389, 394 (Fullagar, Marks and J.D. Phillips JJ); Johnson Tiles [2003] VSC 244, [45]; Hodgson [2012] VSC 205 [10].

[43] Brew v Whitlock (No. 3) [1968] VicRp 63; [1968] VR 504; Williams v Volta [1982] VicRp 74; [1982] VR 739, 742; Hodgson [2012] VSC 205 [15].

[44] Johnson Tiles [2003] VSC 244 [61].

[45] Marsh v Ruby [1975] VicRp 20; [1975] VR 191, 193; Johnson Tiles [2003] VSC 244 [50]-[53], [62]; Hodgson [2012] VSC 205 [16].

[46] Johnson Tiles [2003] VSC 244 [51].

[47] Clarke v Foodland Stores [1993] VicRp 81; [1993] 2 VR 382, 398-400.

[48] David Leahey (Aust) Pty Ltd v McPherson's Ltd [1991] VicRp 77; [1991] 2 VR 367, 380.

[49] Clarke v Foodland Stores [1993] VicRp 81; [1993] 2 VR 382, 393; Hardie v The Herald and Weekly Times Pty Ltd (No 2) [2016] VSCA 130 [12].

[50] Clarke v Foodland Stores Pty Ltd [1993] VicRp 81; [1993] 2 VR 382, 396.

[53] David Leahey (Aust) Pty Ltd v McPherson's Ltd [1991] VicRp 77; [1991] 2 VR 367 and Healthscope (Tasmania) Pty Ltd v Australian Hospital Care Pty Ltd (No 2) [2011] VSC 209.

[54] University of Sydney v Raine & Horne Commercial (NSW) Pty Ltd [1999] VSC 123; Nemur Varity Pty Ltd v National Australia Bank Ltd [1999] VSC 366; PJA Group Pty Ltd v Idameneo (No 789) Ltd (formerly Symbion Health Ltd) [2011] VSC 420 [9]; Alucraft Pty Ltd (In Liq) v Grocon Ltd, (Unreported, Supreme Court of Victoria, Smith J, 13 May 1994).

[55] [2018] VSCA 95.

[56] [2018] VSCA 95.

[57] The contention that the claim should have been brought in the Magistrates' Court was abandoned in the course of argument.

[58] [2018] VSCA 95.

[59] [2018] VSCA 95.

[60] [2018] VSCA 95.

[61] The costs of the first Gioutlou affidavit were also reserved by Macaulay J. However, in my view, that affidavit did introduce relevant background material and the costs of it should not be excluded from the plaintiff's costs.

[62] Oddy v Fry (Unreported, Supreme Court of Victoria, McDonald J, 16 June 1997); Civil Procedure: Victoria [670.25].

[63] Dimos v Willetts [2000] VSCA 154; (2000) 2 VR 170 , 209-10 (Batt JA); Civil Procedure: Victoria [670.25].

[64] [1991] VicRp 77; [1991] 2 VR 367.

[66] [2018] VSCA 95.