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In determining items in doubt on party and party

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In determining items in doubt on party and party basis, presumption is in favour of the party which is to pay costs. In determining solicitor and client or indemnity costs the presumption is in favour of costs being allowed unless they are unreasonable In assessing reasonableness of amount, can look at any costs agreement betw
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Indemnity costs Indemnity costs R 63.30.1: all costs incurred except except insofar as insofar as they are of unreasonable amount unreasonable amount or have been unreasonably incurred unreasonably incurred . Any questions as to unreasonableness shall be resolved in favour of the person to whom the costs are payable.
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Gunns judgment on costs  20/10/06 On 18 July 2005, the Court determined a pleading application adversely to the plaintiffs. It ordered that the defendants’ costs of that application be paid by the plaintiffs; such costs to be taxed on a party and party basis. . ...[then V3 also struck out ....The defendants have now sought their costs on an indemnity basis or, at least on a solicitor and client basis . The plaintiffs have not resisted the defendants’ application for costs but maintain that those costs should be taxed only on a party and party basis.
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Gunns contd. refers to Court of Appeal judgment of Chernov JA ( P C R Z Investments Pty Ltd v National Golf Holdings Limited [2002] VSCA 24) -party seeking an order for costs other than on the general basis must establish something special or unusual to justify such an order. general rule should only be departed from where the losing party had misconducted itself in relation to the proceeding or where the institution of the proceeding was plainly unreasonable or where the proceeding was issued for an ulterior or collateral purpose.
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    Despite argument that Gunns have ‘instituted this proceeding, not for the purpose of vindicating rights, but rather for the purpose of silencing the defendants, no evidence to that effect was ever produced. Any question of ulterior motive or collateral purpose can, thus, be put to one side. Was there misconduct or unreasonable behaviour on the part of the plaintiffs which would justify a higher award of costs than party and party?’
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…. applying Chernov JA’s criteria, it would only be if the court was affirmatively satisfied that the plaintiffs’ failure to heed the warnings given in V2 amounted to misconduct in the conduct of the litigation or that by proffering V3 they were acting plainly unreasonably that a departure from the ordinary basis of taxation of costs would be justified. Even if the concept of misconduct was to be applied technically rather than as connoting any moral turpitude it is difficult to see how it could be applied to the plaintiffs in this case.
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Guns contd Taking into account the changes which the plaintiffs did make to the formulation of their claim in V3 & notwithstanding the warning which the Court gave as to the danger of an order for indemnity costs should the plaintiffs
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In determining items in doubt on party and party basis...

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