Kheirs Financial Services Pty Ltd & Anor v Aussie Home Loans Pty Ltd & Anor

(2010) 31 VR 46; [2010] VSCA 355

Victorian Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Costs
3. › Third and fourth party proceedings
4. › Usual rule that costs follow the event
5. › Whether usual rule applies where third party claim dismissed because plaintiff failed against defendant
6. › Whether costs should be apportioned by analogy with proportionate liability legislation
7. › Need for judicial determination of issues before issues-based costs order can be made
1. Practice and Procedure
2. › Costs
3. › Indemnity costs
4. › Contractual indemnity for costs
5. › Whether contractual indemnity clause entitles party to indemnity costs
6. › Whether plain and unambiguous language required for costs on solicitor and own client basis
1. Practice and Procedure
2. › Costs
3. › Third and fourth party proceedings
4. › Bullock orders
5. › Chain of contracts cases
6. › Whether defendant liable for costs of fourth party proceedings through Bullock order
1. Practice and Procedure
2. › Costs
3. › Single set of costs
4. › Whether parties with common interests entitled to only one set of costs
5. › Whether existence of contribution notice negates single set of costs rule

Quick Take

A trial judge cannot use a hypothetical apportionment of fault under proportionate liability legislation as a basis for allocating costs in third and fourth party proceedings without first adjudicating on all substantive claims and defences. Where third and fourth party claims are dismissed because the plaintiff's claim against the defendant fails, the usual rule that costs follow the event applies, and the unsuccessful claimant in each proceeding ordinarily pays the successful party's costs. A contractual indemnity clause does not entitle a party to indemnity costs unless it contains plain and unambiguous language providing for costs on a solicitor and own client or indemnity basis.