Rassale v Resilium & Ors

O'Brien v Greater Bendigo City Council [2016] VSC 33

Chen v Chan (Costs) [2009] VSCA 233

1. On 17 February 2026, I delivered reasons for judgment in this matter. I found in favour of the plaintiff and awarded damages in the sum of $73,521.20. This ruling assumes familiarity with the reasons and adopts the same terminology.
2. The parties were directed to file submissions regarding the orders to be made consequent upon the judgment, including costs and interest. Submissions were filed on behalf of the plaintiff and the defendants on 2 March 2026. Both parties filed submissions in reply on 6 March 2026.
3. The plaintiff seeks an order for judgment in the amount found above, together with interest calculated under s57 of the Insurance Contracts Act 1984 (Cth) from 11 January 2017 to 9 March 2026 in the sum of $38,474. Details of the calculation of the interest payable are set out in paragraphs 16 to 20 of the plaintiff's submissions dated 2 March 2026. The defendants do not take issue with the plaintiff's calculations of interest. Accordingly, I will order that the plaintiff recover the amount of interest claimed.
4. The parties were unable to reach agreement on costs.

1. The plaintiff seeks an order that the defendants pay its costs of the proceeding to be assessed on the standard basis, in default of agreement. The plaintiff refers to the well-established general rule that absent disqualifying conduct, the successful party should receive its costs even in a case where it has not succeeded on all its heads of claim or argument.
2. Where there are multiple issues in a case, the court will generally not attempt to differentiate between the issues on which a party was successful and on those on which it failed. It would ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to separate issues upon which a party was successful or unsuccessful. An approach of delving into the details of an issue-by-issue basis tends to distract from the principal task of determining an entitlement to costs based on the end result of the litigation.
3. The plaintiff says there is no reason in this case to depart from the usual position that costs follow the event. The plaintiff had substantial success in arguing the main issue in the proceeding, namely that the defendants had breached the policy of insurance by failing to offer the plaintiff a sufficient sum of money by way of indemnity. Whilst the plaintiff did not recover all that it sought, it succeeded in recovering a substantial sum.
4. The plaintiff argues that it succeeded on most of the elements of its claim, namely:

(a) the sum owing in respect to the MCS scope of works assessed by Mr Pitney and the amount of $125,030 (being approximately 30 per cent greater than the sum proffered by the defendants);

(b) additional works beyond the MCS scope of works, assessed in the sum of $17,013;

(c) out-of-pocket expenses incurred by the plaintiff in the sum of $7,600; and

(d) roof repairs assessed in the sum of $25,103.90.

1. The only part of the plaintiff's claim that did not succeed was an allowance for an owner's representative/project manager and a claim for consequential losses compromising the loss of potential rent. In respect of the latter, this was largely confined to legal argument. Given the uncertain state of affairs regarding the principles to be applied, the claim for consequential loss could not have been regarded as being unreasonable and certainly not so much as to deprive the plaintiff of a portion of its costs. As the plaintiff had substantial success, it should be awarded as costs on the standard basis with no apportionment in respect to the consequential loss claim.
2. The plaintiff submitted that there have been numerous cases demonstrating that success in only a small portion of the claimed amount does not disentitle a plaintiff to any part of its costs.[1]

1. The defendants dispute the costs order proposed by the plaintiff and say there is good reason to depart from the usual rule that costs should follow the event. They seek costs orders in the alternative, namely:

(a) each party bear its own costs of the proceeding; or

(b) if apportioning the costs in the manner sought by the defendants, the defendants should pay the plaintiff 15 per cent of its costs of the proceedings on a standard basis, less the defendants' costs of and occasioned by, and costs thrown away because of the plaintiff's amendments to the particulars of its claim. In addition, any order that the defendants pay the plaintiff's costs should exclude any costs for the evidence given by Mr Talevski.

1. The defendants also say that it was unnecessary for senior counsel to have been retained and that any costs of senior counsel should be excluded.
2. The defendants argue that there should be a departure from the usual rule given:

(a) the large disparity between the relief sought and the relief awarded;

(b) the number of claims pursued and the number of claims in which the plaintiff succeeded; and

1. The plaintiff persisted with much higher claims up until the first day of trial when it provided amended particulars. The total of those claims made at the time were $442,101. The defendants note the amount awarded for the MCS scope of works represented $29,041.70.
2. In terms of the claim for the replacement of the roof, Mr Talevski had originally said that the entire roof should be replaced but changed his mind when he gave evidence during the trial. The amount the plaintiff was awarded was $25,103.90 which was marginal compared with the amount originally claimed. Further, the conduct of the plaintiff in relation to that claim and the evidence used to support it warrants an order whereby it does not recover its costs for its success on this claim. Reference was made to the fact that the evidence of quantum for the roof repairs was provided after cross-examination of the engineers had concluded and was provided without advance notice to the defendants' solicitors. This was despite the plaintiff's solicitors having received a draft of the quantum report several days beforehand and prior to the cross-examination of the engineers. The claims for an owners representative and the loss of hypothetical rent failed in their entirety.
3. The defendants note there were a number of claims which were abandoned and while they were not pursued at trial, their inclusion caused the defendants to incur costs unnecessarily. The abandoned claims related to land tax, council rates, internal decontamination, destruction and removal of the roof, as distinct from the Talcon engineering scope of works.
4. In summary, the defendants say that most of the plaintiff's claims either failed in their entirety or achieved success of less than 50 per cent of the amount claimed.
5. The defendants also submit that the court should bear in mind the plaintiff's alleged contraventions of the Civil Procedure Act 2010 ("CPA") or at least the conduct underlying what might be regarded as proper contravention. Reference is made to the delays which occurred in this proceeding which are said to be almost entirely at the foot of the plaintiff. Accordingly, the defendants seek an order that the plaintiff is not entitled to recover any costs reserved on 15 August 2022, 26 August 2022, 6 December 2023 and 17 July 2024. By order dated 31 July 2025, the plaintiff was given leave to issue a subpoena to Mr Goodbrand, but did not call him. On each of these occasions costs were reserved and the plaintiff should not recover them. It is also said that had the claim been properly formulated it would have been a claim in the Magistrates' Court and much more capable of resolution by agreement prior to trial.

Apportionment of costs on issue or no orders as to costs

1. Under r63A.04 of the County Court Civil Procedure Rules 2018 ("County Court Rules), the court may make an order for costs in relation to a particular question or a particular part of the proceeding. This power permits orders depriving an ultimately successful party of its costs or part of its costs or awarding an unsuccessful party part of its costs. A successful party may recover only a portion of its costs when that party has been unsuccessful in respect of certain discrete issues. But that should not be done as a matter of course. An issue does not necessarily mean a precise issue in the pleading but relates to any disputed question of fact or law.[2] It can be accepted that where there is a multiplicity of issues and the parties have enjoyed mixed success, the court may take a pragmatic approach in framing the order for costs taking into account the success or lack thereof of the parties on an issues basis. Whatever the approach, the court is entitled to examine the realities of the case and an attempt to do substantial justice "between the parties on matters of costs".[3]
2. In Nom de Plume Nominees Pty Ltd v Fingal Developments Pty Ltd, the Court of Appeal observed as follows:[4]

The relevant principles for the resolution of the question as to the costs of the appeal, and in respect of any apportionment of the costs of the trial, are those set out by this Court in Chen v Chan. In short, for present purposes, while the general rule is that costs should follow the event, where there is a multiplicity of issues and mixed success has been enjoyed by the parties, the court may take a pragmatic approach in relation to costs, taking into consideration the success (or lack of success) of the parties on an issues basis. Such an approach will be primarily a matter of impression and evaluation.

1. I am not persuaded by the defendants' submission that the first order sought by them should be made, namely, that there be no order as to costs. The plaintiff has achieved substantial success and therefore, the usual rule should apply that costs follow the event. That leaves the question of whether there should be some reduction in the amount ordered as a result of the various matters raised by the defendants.
2. Whilst it is true that the quantum of the claim did drop significantly at the start of trial and also during trial a number of items were amended or abandoned, there has been no evidence led to suggest that the defendants were otherwise put to additional costs by reason of the reduction in the quantum of the claims made.
3. I am not persuaded that the failure of the owner's representative's claim and the claim for loss of hypothetical rent caused any significant wasted costs to be incurred by the defendants, for which there should be some discount. The former claim was minor and did not take up much time in the trial. The latter claim regarding the loss of potential was primarily a legal argument and did not cause the length of the trial to be increased. I do not accept the defendants' submission made in reply that this claim was unreasonably pursued. It was in my view, one which was open for debate given the inconsistent state of the relevant authorities. The remaining issues upon which the plaintiff succeeded took up the majority of the trial.
4. The evidence from the engineers did change during the course of the trial. However, it could not be envisaged that this would occur when the joint experts conferred and that both of them would change the opinions they had previously given in their expert reports. As for the further evidence of Mr Pitney regarding the costing of the revised roof scope of works, it is true the defendants were not given advance notice of these items. His report fell out as a consequence of the unforeseen revised evidence given at trial by the engineers. But as experience tells, a change in evidence is not an unusual experience during trials and parties have to adapt and make do as best they can. I am not persuaded that the costs of the earlier evidence from Mr Talevski should be excluded. It should also be noted that Mr Irwin changed his position as well following the experts' joint meeting.
5. In the absence of any evidence or detailed submissions as to the reasons why the defendants ought to receive their costs on the dates of the orders listed in their submissions, the court is not in a position to know whether such costs should now be ordered in their favour. On the materials filed, there is an insufficient basis to support such an order being made. The same applies to the argument put that the defendants incurred costs unnecessarily relating to claims which were abandoned at trial - no details were provided of what those costs were and why they were said to be wasted.
6. Overall, I am not persuaded by the defendants' submissions that they should only have to pay 15 per cent of the plaintiff's costs, being the alternative costs order sought.
7. The defendants argue the retention of senior counsel was not warranted in this proceeding. As it has turned out, the amount which the plaintiff has recovered is relatively low in quantum although that was not readily apparent at the commencement of the trial.
8. It can be accepted the court possesses an overriding discretion in relation to the fixing of an order for costs, including any allowances for counsels' fees.[5] The court has the discretion to certify for two counsel and fix the brief fee or alternatively, let the costs court sort the issue out. It is entirely up to the judge to determine. The court's discretion in fixing a fee is to be exercised subject to a number of factors such as the complexity of the matter, the extent of the legal practitioners' involvement in the matter and any specialised knowledge or skills required. Since 2014, the practise of certifying for two counsel is no longer required under the County Court Rules.[6]
9. The taxation of costs by officers of the costs court ensures that costs are evaluated on a logical, fair and reasonable basis by those who are experienced and familiar with the assessment of costs.[7] In my view, the question of whether the retention of senior counsel was necessary to represent the plaintiff should be left to the costs court as it is best placed to determine this issue given its expertise in such matters.
10. I will order that there be judgment for the plaintiff in the sum of $73,521.20 together with interest fixed in the amount of $38,474. I will further order that the defendants pay the plaintiff's costs of the proceeding on the standard basis, to be taxed in default of agreement.

I certify these 8 pages are a true copy of the reasons for ruling of her Honour Judge A Ryan delivered on 11 March 2026.

[1] See paragraph [15] of the plaintiff's submissions and the cases referred to therein.

[2] APN Funds Management Limited v Australian Property Investments Strategic Pty Ltd & Anor (Costs) [2012] VSC 365 at [11]

[3] Chen v Chan (Costs) [2009] VSCA 233 [10]

[4] [2016] VSCA 233 at [13]

[5] Per Forrest J in O'Brien v Greater Bendigo City Council [2016] VSC 33 at [13]

[6] Per Gorton J in Eastern Health v Neill (No 2) (2022) 67 VR 458

[7] Henwood v Nansor Australia Pty Ltd (costs ruling) [2013] VSC 655