Peet Limited v Richmond

[2010] VSCA 71

Victorian Court of Appeal

Built by Barristers,
For Australian Law.

See how it works

Interrogate

Catchwords

1. Practice and Procedure
2. › Costs
3. › Indemnity costs
4. › Claims abandoned at outset of trial
5. › Whether open to trial judge to inquire into viability of abandoned claims
6. › Whether hypothetical trial impermissible where all evidence-in-chief already before court
1. Practice and Procedure
2. › Costs
3. › Indemnity costs
4. › Inference of ulterior motive or wilful disregard
5. › Unexplained abandonment of claims at trial
6. › Whether failure of successful party to draw futility to attention of losing party precludes indemnity costs order
1. Appeal
2. › Leave to appeal
3. › Costs orders
4. › Discretionary decisions
5. › Whether decision attended by sufficient doubt to warrant grant of leave

Quick Take

Where commercial list orders require evidence-in-chief by witness statement and all such evidence is before the court, a trial judge may inquire into the viability of claims abandoned at trial for the purpose of determining an application for indemnity costs, notwithstanding the general principle against hypothetical trials. The unexplained abandonment of claims at the outset of trial, combined with a dearth of supporting evidence, is capable of supporting an inference of ulterior motive or wilful disregard sufficient to ground an indemnity costs order. A successful party's failure to expressly draw the futility of an opponent's claims to their attention does not preclude an indemnity costs order where the weaknesses were sufficiently exposed through the pleadings, affidavits and communications during the litigation.