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[2004] VSC 50
Supreme Court of Victoria
2004-02-27
Balmford J
Original judgment source is linked above.
(a) under section 75AF of the Trade Practices Act 1974 for the loss which the plaintiffs have suffered because of the defect in the heater as a result of the destruction of or damage to their goods, being goods of the kind described in section 75AF(c), as a result of the fire at 26 Hedge End Road Mitcham on 2 May 1997;
(b) under section 75AG of that Act for the loss which the plaintiffs have suffered because of the defect as a result of the destruction of or damage to the house situate at 26 Hedge End Road Mitcham as a result of the fire on 2 May 1997; and
(c) under section 82 of that Act in respect of the claim made under the headings "Tools" and "Trade Electrical Components" in the plaintiffs' Further and Better Particulars of Loss and Damage dated 25 September 2001 by reason of the breach by the defendants of the provisions of sections 74B and 74D of the Act.
3. That the compensation payable by the defendants to the plaintiffs under paragraphs 2(a), (b) and (c) together with the damages to which the plaintiffs are entitled by way of interest be assessed by a Master pursuant to Order 51.
4 That the plaintiffs' costs of the proceeding be taxed and when taxed paid by the defendants.
2. That the defendants' costs in the proceeding which are non-common to the costs in proceeding No 4774 of 2000 be taxed and when taxed paid by the plaintiff.
That the plaintiffs' costs thrown away as a result of the adjournment in respect of 13 October 2003 be paid by the defendants on a party-party basis.
[1] In ACCC v Glendale Chemical Products Pty Ltd (1998) APTR 41-632 at 40,970
[2] I am not, of course, concerned with the quantification of the claimed loss, it having been agreed that the loss be assessed by a Master pursuant to Order 51: see [78] of the earlier reasons.
[4] see [72] and [32] to [34] of the earlier reasons
[6] unreported, decided on 21 November 1996: at 11
[7] [1997] 2 VR 5 at 29.
[9] (1991) 24 NSWLR 103 at 105.
[10] [1993] FCA 536; (1993) 46 FCR 225 at 229 ff
[11] [1988] FCA 202; (1988) 81 ALR 397 at 400-1.
[13] (1992) 34 FCR 412 at 415.
[14] [1993] FCA 42; (1993) 46 IR 301 at 303
[15] [2001] VSC 189 at [8] to [12].
Thomas
Southcorp Australia Pty Ltd
Although, as a general rule, the court will order costs to be taxed and paid on a party and party basis (see r. 63.31 of the Rules of Civil Procedure) it none the less is invested with the discretion to order costs to be taxed and paid on a solicitor and client basis (see r. 63.32 of the Rules). That discretion is not limited to the particular circumstances described in the rule: see per Batt J. Regal Life Insurance Ltd. v. Pacific Financial Resources Pty. Ltd. (unreported, 16 November 1994). The discretion to award costs on a solicitor and client basis is, thus, an unlimited one although it must be exercised judicially and not unreasonably. The circumstances in which a court might be moved to award costs on the solicitor and client scale should be described as "special" if only to set them apart from the usual basis upon which costs are awarded: see per Callaway J.A. Spencer v. Dowling ([1996] VSC 51; [1997] 2 VR 127]).
Solicitor and client costs are themselves of different kinds. . . . Sometimes they are taken to afford less than a complete indemnity, but on other occasions their purpose is to do what the court can to ensure that a party is not out of pocket. . . . It was for that reason that Woodward J., in Fountain Selected Meats (Sales) Pty. Ltd. v. International Produce Merchants Pty. Ltd. [1988] FCA 202; (1988) 81 ALR 397 at 401-2, decided that costs should be paid on a solicitor and client basis but adopted the language of indemnity in the actual order he made to provide greater certainty.
This practice has continued to apply notwithstanding expressions of view by individual judges that it is capable, in today's circumstances, of working injustice: see, for example, per Rogers J. (as he then was) in Qantas Airways Ltd. v. Dillingham Corp. (unreported, N.S.W. Supreme Court, 14 May 1987). The practice is designed to reflect a compromise between the interests of successful and unsuccessful litigants. As Handley J.A. observed in Cachia v. Hanes (1991) 23 N.S.W.L.R. 304 at 318 the practice is also adopted to provide an "important spur to settlement". Sheppard J. in Colgate-Palmolive Co. v. Cussons Pty. Ltd. [1993] FCA 536; (1993) 46 F.C.R. 225 at 233 restated the practice and pointed out:
(1988) 81 ALR 397
(2003) 198 ALR 630
(2001) 4 VR 28
(1991) 24 NSWLR 103
(1993) 46 FCR 225
(1992) 34 FCR 412
(1993) 46 IR 301
(1996) 138 ALR 425