Victorian Xray Group (Dandenong) Pty Ltd v Malouf t/a Malouf Solicitors (No. 5)

1. [1]

   On 23 July 2024 I entered judgment for the defendant and ordered that the plaintiffs pay the defendant’s costs.

2. [2]

   On 9 December 2024 the plaintiff gave notice of an intention to seek to vary that costs order. The plaintiffs then filed a motion seeking orders varying the costs order. The plaintiffs’ application was then listed for hearing on 1 April 2025.

3. [3]

   On 14 April 2025 I made the following orders:

   1. (1)

      The plaintiffs’ motion seeking a variation of the costs orders is dismissed.

   2. (2)

      The plaintiffs are to pay the defendant’s costs of the motion.

4. [4]

   The plaintiffs now seek to vary the costs order in respect to the motion.

5. [5]

   They submit that the appropriate order in respect of the costs of their application should be:

6. [6]

   In making this application, they rely on a number of matters including that:

7. [7]

   The plaintiff submits that when confusion (meaning their confusion) arises from the terms of an order and both parties act reasonably, the Court is entitled to and should depart from the usual order that “costs follow the event”.

8. [8]

   The defendant submits that, even if a view might be taken that the plaintiffs acted reasonably and thought that they could apply for a variation of the costs order at any time, this is no basis for denying the successful party a costs order in his favour. Further, he submits that my observation (“unconstrained by authority”) was merely a reflection of the reality of the situation and the strength of the defendant’s arguments.

9. [9]

   The point emphasised by the defendant on the hearing to vary the original costs order, and in writing in response to the plaintiffs’ current application and in correspondence passing between the defendant and the plaintiffs months before the hearing in April 2025, is that the Court of Appeal had consistently rejected the arguments advanced by the plaintiff on their application to vary the costs order.

Determination

1. [10]

   I do not accept the plaintiffs’ submissions. In my view, having heard and determined the plaintiffs’ application, I should make an appropriate costs order in respect of that application as I did so.

2. [11]

   It may be that in some circumstances the reasonableness of the parties’ conduct is a relevant factor in determining the appropriate costs order. However, having an arguable case (if that is what is asserted in respect of the motion), is hardly sufficient to displace the ordinary rule in awarding costs. If it were to the contrary, the court would always be required to embark on an inquiry as to whether, given different findings and legal principles, the relevant party might have won.

3. [12]

   The fact that the plaintiffs might have been successful absent authority which did not support their arguments or that they might succeed in the Court of Appeal or that they say they were confused by the original granting of liberty to apply, are not matters which should cause me to defer making a costs order on the conclusion of the application.

4. [13]

   Costs should follow the event, and nothing said by the plaintiffs causes me to alter that approach. Nor am I persuaded that there is any reason to simply reserve the question of costs, pending the outcome of the appeal. All that would do would be to shift the burden to the Court of Appeal or cause me to revisit the question at a later time. Of course, nothing I say prevents the plaintiffs from pursuing their appeal even in respect of the costs order.

5. [14]

   In the circumstances, I reject the plaintiffs’ application to vary the costs order I made on 14 April 2025.

6. [15]

   I note that this further application was dealt with on the papers and by way of written submissions. The cost of the submissions form part of the application determined on 14 April 2025. Those costs fall within the costs order made on that day, being the plaintiffs are to pay the defendant’s costs.