ACN 115 918 959 Pty Ltd v Hoeys Lawyers Pty Ltd (Costs Ruling)
[2018] VSC 508
•5 September 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PROFESSIONAL LIABILITY LIST
S CI 2015 02476
| ACN 115 918 959 PTY LTD (FORMERLY KNOWN AS PEARL HILL PTY LTD) | Plaintiff |
| v | |
| HOEYS LAWYERS PTY LTD (ACN 102 409 263) | First Defendant |
| and | |
| KENNETH OLIVER | Second Defendant |
| and | |
| GEOFFREY JOHN DIGBY | Third Defendant |
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JUDGE: | Blue AJ (sitting as a judge of the Supreme Court of Victoria) |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 26 June 2018 |
DATE OF JUDGMENT: | 5 September 2018 |
CASE MAY BE CITED AS: | ACN 115 918 959 Pty Ltd v Hoeys Lawyers Pty Ltd & Ors (Costs Ruling) |
MEDIUM NEUTRAL CITATION: | [2018] VSC 508 |
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PROCEDURE — Costs — Departing from general rule — Conduct of parties — Security for costs not provided as ordered — Applications for dismissal of action ultimately dismissed —Whether plaintiff’s conduct cause of costs - Applications for dismissal of action dismissed insofar as founded on alleged breach by plaintiff of discovery order — Whether costs order should reflect loss by defendants on this issue - Whether costs should be ordered on ordinary or indemnity basis.
PROCEDURE — Civil proceedings in state and territory courts — Costs — Interlocutory proceedings — Whether costs should be taxed forthwith — Whether costs should be fixed in lump sum or taxed.
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr I Jones QC | GPZ Legal |
| For the First Defendant | Ms A Golding | Minter Ellison |
| For the Second Defendant | Mr H Obst | Obst Legal |
| For the Third Defendant | Mr D Collins QC | DLA Piper |
HIS HONOUR:
This is an application for costs in respect of applications by the defendants for dismissal of the action for failure to comply with security for costs and discovery orders which were ultimately dismissed.
Background
In May 2015 this action was instituted against the defendants, who were respectively solicitors and barristers who allegedly gave negligent advice to the plaintiff in 2009 in relation to an agreement for the purchase of land in October 2008.
In December 2016 orders were made by consent that the plaintiff provide security for the defendants’ costs up to mediation in the sum of $200,000 in respect of the first defendant, $45,000 in respect of the second defendant and $150,000 in respect of the third defendant. That security was provided.
In September 2017 the parties attended a mediation. The matter did not settle. In November 2017 the defendants applied for orders for further security for their costs.
On 8 December 2017 orders (the security orders) were made by consent that the plaintiff by 31 January 2018 provide further security for the defendants’ costs up to the beginning of trial in the sum of $200,000 in respect of the first defendant, $115,000 in respect of the second defendant and $200,000 in respect of the third defendant and in default of payment the action be stayed against the relevant defendant until compliance.
At the same time an order (the discovery order) was made that by 21 December 2017 the plaintiff make further discovery by filing a supplementary affidavit disclosing:
1. all financial records relating to the financial position of the plaintiff and its trust between October 2008 and May 2009;
2. “further or alternatively” all documents relating to the capacity of the plaintiff and its trust to fund the purchase price of the land the subject of the agreement made in October 2008.
On 21 December 2017 the plaintiff filed a supplementary list of documents disclosing a letter offering finance and various land title and company searches. On 22 January 2018 the plaintiff served the supplementary list of documents on the defendants. Correspondence ensued in which the defendants’ solicitors asserted non-compliance with the discovery order, with which the plaintiff’s solicitors took issue. The plaintiff’s solicitors contended that, because the word “alternatively” was included in the discovery order, the plaintiff could elect to comply with either limb thereof and had complied with the second limb.
On 31 January 2018 the plaintiff’s solicitors sent an email to the defendants’ solicitors noting that the plaintiff had not yet provided security for costs and said that it would shortly do so.
On 9 February 2018 the third defendant’s solicitors sent an email to the plaintiff’s solicitors gently threatening to apply to strike out the action for failure to provide security for costs and proper discovery if the plaintiff did not comply with the 8 December 2017 orders.
On 14 February 2018 the plaintiff filed and served an affidavit by its sole director Mr Mimmo verifying the supplementary list of documents. Mr Mimmo deposed to his belief that the plaintiff did not now and had not ever had possession, custody or power of any document required to be discovered other than the documents enumerated in its lists of discovery.
On 14 February 2018 the plaintiff’s solicitors wrote to the Court, copied to the defendants’ solicitors, saying that the plaintiff had not yet provided security and they understood that the action was therefore stayed and that the directions hearing scheduled for 16 February 2018 would need to be vacated. They said that they would provide an update as to the plaintiff’s progress in providing security during the following week. As a result of that letter, the directions hearing was vacated.
On 15 February 2018 the second defendant’s solicitors sent an email to the plaintiff’s solicitors gently threatening to apply to strike out the action for failure to provide security for costs and proper discovery if the plaintiff did not comply with the 8 December 2017 orders.
On 19 March 2018 the plaintiff’s solicitors sent an email to the Court, copied to the defendants’ solicitors, saying that Mr Mimmo had suffered a work injury which incapacitated him recently and they would update the Court fully that week. They did not do so.
On 21 March 2018 the third defendant indicated that he upon the allocation of a hearing date would file a summons seeking dismissal of the action for failure to comply with the security and discovery orders. The third defendant filed and served an affidavit by his solicitor sworn on 21 March 2018 in support of the application.
On 17 April 2018, after allocation of a hearing date, the third defendant’s summons was filed. On 17 and 18 April 2018 the second and first defendants respectively filed a summons, supported by an affidavit by their solicitors, seeking dismissal of the action for failure to comply with the security and discovery orders. In respect of the discovery order, the defendants did not rely on the fact that the affidavit of supplementary discovery was late but rather on the contention that its content did not comply with the discovery order.
On 24, 25 and 26 April the plaintiff’s solicitor and Mr Mimmo swore affidavits in opposition to the applications. Mr Mimmo referred to a hand injury suffered in April 2017 which deteriorated in October 2017, impairing his ability to concentrate and resulting in an operation on 27 February 2018. He said that following the operation his condition improved, he returned to work two weeks earlier and he was seeking finance in order to provide the security. He deposed to a belief that under the discovery order the plaintiff could elect to discover documents under either limb of the order. He and the plaintiff’s solicitor deposed to steps taken to seek finance in order to provide the security.
On 27 April 2018 I heard the defendants’ applications. The hearing was adjourned for completion on 1 May 2018. On 1 May 2018 Mr Mimmo swore a further affidavit deposing to further steps taken to seek finance in order to provide the security.
On 1 May 2018, at the conclusion of submissions, I gave ex tempore reasons for my decision on the applications. Insofar as the applications were based on alleged failure to comply with the discovery order, I considered that the consent order was ambiguous and in light of the belief about their construction apparently held by Mr Mimmo and his solicitor it was not appropriate to contemplate dismissal of the action. On the other hand, I considered that the plaintiff had not complied with its general discovery obligation (independently of the order) to discover all relevant documents and in particular had failed to discover financial statements of the plaintiff and its trust for the financial years ended 30 June 2006 to 2008; asset schedules in respect of assets shown therein and applications for finance and supporting documents and responses between October 2008 and May 2009. I made an order without opposition by the plaintiff that the plaintiff file and serve an affidavit making discovery in respect of the first class of documents by 9 May and the second and third classes by 16 May 2018.
Insofar as the applications were based on failure to comply with the security orders, I was satisfied that the prerequisites to enliven the Court’s discretion to dismiss the action were met. However, particularly in light of Mr Mimmo’s affidavit sworn on that day, it was premature to dismiss the action. I adjourned the applications to 26 June 2018 and indicated that, if security had not by then been provided, I was minded to dismiss the action.
On 10 and 17 May 2018 the plaintiff filed affidavits by Mr Mimmo verifying supplementary lists of documents pursuant to the 1 May order.
On 25 and 26 June 2018 the plaintiff provided the security ordered by paying the respective amounts into Court.
On 26 June 2018 the defendants accepted that the plaintiff had now complied with the 1 May discover order and had now provided the security ordered on 8 December 2017. I dismissed the defendants’ applications. The plaintiff sought an order that the defendants pay its costs in respect of the applications. The defendants sought orders that the plaintiff pay their costs of the applications on an indemnity basis fixed in a lump sum and payable forthwith with conditional dismissal orders if not paid within a specified time. I heard argument on the costs applications and reserved judgment.
Who should pay costs
It is common ground that a costs order should be made in respect of the defendants’ applications: it is not suggested by any party that the question of costs of the applications should be deferred until or depend on the result of the action or that there should be no order as to costs.
The plaintiff seeks an order that the defendants pay its costs on the basis that costs should follow the result of the interlocutory event. The defendants seek orders that the plaintiff pay their costs on the basis that the plaintiff failed to comply with the security orders and its discovery obligations and it was the plaintiff’s conduct that caused the incurring of the costs.
General principles
Costs are in the discretion of the Court under section 24 of the Supreme Court Act 1986 (Vic). The discretion is unfettered but must be exercised judicially.[1]
[1]Verna Trading Pty Ltd v New India Assurance Co Ltd[1991] 1 VR 129 at 174-175 per Ormiston J; Transport Accident Commission v O'Reilly, Cavanagh, Moore & Davey [1998] VSCA 106 , [1999] 2 VR 436 at [9]-[10]] per Tadgell JA (with whom Callaway JA agreed); Loizou v Derrimut Enterprises Pty Ltd (No 2) [2004] VSC 548 at [14] per Wheelan J.
As a general rule costs follow the event.[2] The general rule applies to a wholly successful party.[3] When the overall successful party has failed on one or more issues, the question arises whether costs should be apportioned according to issues.[4]
[2]Transport Accident Commission v O'Reilly, Cavanagh, Moore & Davey [1998] VSCA 106 , [1999] 2 VR 436 at [10]-[11] per Tadgell JA (with whom Callaway JA agreed) and [46] per Ormiston JA; Kheirs Financial Services Pty Ltd & Anor v Aussie Home Loans Pty Ltd & Anor [2010] VSCA 355, (2010) 31 VR 46 at [15] per Maxwell P, Tate JA and Habersberger AJA.
[3]See the mode of expression of the High Court in Milne v Attorney‑General for the State of Tasmania (1956) 95 CLR 460 at 477 per Dixon CJ, McTiernan, Williams, Fullagar and Taylor JJ.
[4]See Australian Trade Commission v Disktravel [2000] FCA 62 at [3] per French, Kiefel and Mansfield JJ; Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107 at [3]-[6] per Finkelstein and Gordon JJ; Spotless Group Ltd v Premier Building and Consulting Pty Ltd [2008] VSCA 115 at [13]-[15] per Redlich JA (with Dodds Streeton JA agreeing).
A relevant factor in exercising the discretion as to costs is the extent to which the costs in question have been caused or increased by the conduct of a party in, relating to or leading up to the action or application in question.[5]
[5]Bostock v Ramsey Urban District Council [1900] 2 QB 616 at 622 per A. L. Smith LJ; Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd [1951] 1 All ER 873 at 874 per Devlin J; Verna Trading Pty Ltd v New India Assurance Co Ltd[1991] 1 V.R. 129 at 154-155 per Ormiston J.
In Oshlack v Richmond River Council,[6] McHugh J said:
The traditional exceptions to the usual order as to costs focus on the conduct of the successful party which disentitles it to the beneficial exercise of the discretion. In Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd, Devlin J formulated the relevant principle as follows:
"No doubt, the ordinary rule is that, where a plaintiff has been successful, he ought not to be deprived of his costs, or, at any rate, made to pay the costs of the other side, unless he has been guilty of some sort of misconduct."
"Misconduct" in this context means misconduct relating to the litigation, or the circumstances leading up to the litigation. Thus, the court may properly depart from the usual order as to costs when the successful party by its lax conduct effectively invites the litigation; unnecessarily protracts the proceedings; succeeds on a point not argued before a lower court; prosecutes the matter solely for the purpose of increasing the costs recoverable; or obtains relief which the unsuccessful party had already offered in settlement of the dispute.[7]
[6][1998] HCA 11, (1998) 193 CLR 72.
[7]At [69]. (Citations omitted).
As appears from the last example given by McHugh J, a party may be deprived of costs or ordered to pay the opponent’s costs if that party has unreasonably failed to accept an offer to settle the action or application in question which would have produced a better (or equal) result to the first party than the decision of the court. Although this factor has no application in the present case, all four factors to which reference has been made may be seen as part of ascertaining which party caused or contributed to the incurring of the costs in question. Ordinarily the party who unsuccessfully sought or unsuccessfully resisted the orders in question will be seen as having caused the incurring of the relevant costs and will be ordered to pay the costs of the successful party. In some cases it may be seen that there were two or more sufficiently severable issues on which the parties had mixed success and the costs incurred in respect of the issue on which the overall successful party failed were caused by that party’s persistence with that issue. In other cases, it may be seen that the conduct of the successful party was the substantial or operating cause of the incurring of the costs or contributed thereto. In other cases it may be seen that the failure of the successful party to settle the matter on terms that were not bettered in the result was the cause of the incurring of the costs.
Applications for dismissal based on failure to provide security for costs
It is convenient to address the two alternative bases of the dismissal applications because the plaintiff puts different arguments in respect of each in support of its overall contention that the defendants should pay its costs of the dismissal applications.
It is true that the dismissal applications were ultimately dismissed on 26 June 2018. However, the plaintiff was in breach of the security orders between 1 February 2018 and 25 June 2018. Before the summonses by the defendants seeking dismissal were filed in mid-April 2018, the plaintiff did not provide a detailed or satisfactory explanation for not having provided security or concerning the timing or prospects of providing the security in future other than the vague and belated statement by its solicitors on 21 March 2018 that Mr Mimmo had suffered a work injury which incapacitated him. After the summonses were filed, the plaintiff did not provide a detailed explanation of these matters until the eve of the hearings on 27 April and 1 May 2018. If the defendants had not taken action, it is likely that the provision of security would have continued to drift without resolution for some time.
The defendants succeeded on 1 May 2018 to the extent of establishing the prerequisites under rule 62.04 of the Supreme Court (General Procedure) Rules 2015 (Vic) and section 29(1)(f) of the Civil Procedure Act 2010 (Vic) to dismiss the action for failure to provide the security ordered. It was on the exercise of the discretion that the defendants failed. The exercise of that discretion was relatively finely balanced and I gave the plaintiff a final opportunity to provide the security that had been ordered.
Notwithstanding the ultimate dismissal of the defendants’ applications, the operative and substantial cause of the incurring of the costs in respect of both the making of and argument on the applications was the conduct of the plaintiff. In the circumstances, leaving aside the question of costs insofar as the defendants relied on an alleged failure to comply with the discovery order, the plaintiff should pay the defendant’s costs of those applications.
Applications for dismissal based on alleged failure to comply with discovery order
When the defendants filed their summonses seeking summary dismissal, they knew that both Mr Mimmo and the plaintiff’s solicitor had proceeded (rightly or wrongly) in the belief that the discovery order permitted the plaintiff to elect to comply with either limb thereof. They also knew that the plaintiff had purported to comply with the discovery order and Mr Mimmo had sworn the supplementary discovery affidavit deposing to his belief that the plaintiff had complied with its discovery obligations.
In these circumstances, regardless of the objective construction of the discovery order and the objective question whether the plaintiff had complied with it, as I ruled in my ex tempore reasons on 1 May 2018, there was no proper foundation to dismiss the action. Rather the appropriate course was for the defendants to seek an order for more specific discovery.
The issue in relation to dismissal on the ground of failure to comply with the discovery order was sufficiently separate from the issue in relation to security for costs to justify a differential costs order. It is necessary to make a broad axe assessment of the proportion of costs incurred in relation to the security and discovery issues. In making that assessment I take into account in the defendants’ favour that they would have been justified in making an application for an order for specific discovery (which I in fact made on 1 May 2018) and some of the costs incurred in relation to the discovery issue would have been incurred in any event if they had so proceeded. My assessment is that the defendants should be deprived of ten per cent of their costs of the dismissal applications on account of their failure on their applications insofar as they relied on breach of the discovery order.
Duplication between defendants
The plaintiff contends that there was duplication of work undertaken by the solicitors for the defendants and hence in costs incurred by the defendants and that it ought not to be ordered to pay three (full) sets of costs. The plaintiff contends also that there was duplication of costs incurred by the defendants insofar as the vast majority of the arguments presented at the substantive hearings and the costs hearing were undertaken by Mr Collins QC, senior counsel for the third defendant, and junior counsel for the first defendant largely adopted the arguments of the third defendant.
The defendants contend that they should each recover their own costs incurred on their own dismissal applications. They also submit that, if all three defendants had briefed Mr Collins QC, it may have precluded him from appearing at the trial of the action. In this respect, Mr Obst attended at the hearings in the dual capacity as solicitor and solicitor-counsel for, and no other solicitor attended on behalf of, the second defendant.
When multiple defendants[8] have a common interest but are separately represented, the Court has a discretion to make an order having the effect that the unsuccessful plaintiff does not pay full costs in respect of all defendants: this may be achieved by disallowing costs of the additional defendant(s)[9] or by reducing the costs payable by the plaintiff in respect of each defendant.[10]
[8]The same principle applies to multiple third parties having a common interest in respect of a third party claim or multiple defendants to counterclaim having a common interest in respect of a counterclaim. It also applies in theory to multiple plaintiffs having a common interest if separately represented but this is rare.
[9]Chadwick v McMullen (1897) 19 ALT 122 at 124 per Holroyd J; Wallace v Wallace (1898) 24 VR 859 at 890-891 per Madden CJ; Re Lyell [1941] VLR 207 at 212 per Martin J.
[10]See for example Goldus Pty Ltd v Australian Mining Pty Ltd (No 2) [2016] SASCFC 35.
I accept that it was necessary for each defendant to make its own application for dismissal because separate orders had been made for security for costs. I accept that it was necessary for each defendant to incur some costs in relation to its own application. On the other hand, there was a complete overlap between the issues raised by the three applications. In a substantive sense there was a common interest between the three defendants such that the defendants ought to have taken all reasonably available measures to avoid duplication and minimise costs incurred by reason of there being three defendants.
In relation to counsel, my provisional view is that it was not necessary or reasonable for the first defendant to brief independent counsel. The third defendant took the lead in bringing the application for dismissal in March 2018, adduced the great majority of the evidence adduced (by affidavit) at the hearings and presented the great majority of the submissions at the hearings. I am not persuaded that there was a reasonable possibility that Mr Collins QC would have had a conflict of interest in appearing for the third defendant at trial if he had been briefed to appear for all defendants but in any event there appears to be no reason why the solicitor for the first defendant who attended at the hearings could not have appeared as solicitor-counsel in the same manner as Mr Obst, solicitor for the second defendant, appeared as solicitor-counsel for the second defendant. Each of the plaintiff and the third defendant were represented by senior counsel and I accept that, given the complexity of the matter, it was reasonable for the third defendant to be represented by senior counsel.
In relation to the solicitors’ work, I would expect that the solicitors for the defendants cooperated in relation to out-of-court work with a view to minimising costs and duplication. However, in the absence of a detailed scrutiny of the work undertaken by the three sets of solicitors and costs incurred by the three defendants, I am not in a position to make a finding whether this was in fact achieved.
In relation to attendances by solicitors at the hearings, I accept that it was necessary for one solicitor for each defendant to attend at the hearings. However, I am not persuaded that it was necessary or reasonable for more than one solicitor to attend on behalf of each defendant.
Ultimately a taxing officer would be in a much better position than I to determine the extent to which it was reasonable for the three defendants to incur the costs which they did and the extent to which costs incurred by any one defendant were not reasonably incurred within the meaning of rule 63.30 by reason of duplication.
Costs of hearing on 26 June 2018
On 26 June 2018 I made a series of orders giving directions for the usual pre-trial steps. The first part of the hearing on that day was devoted to these directions. It was necessary for the parties to attend at that hearing in any event. The costs of and in respect of that part of the hearing should be costs in the cause. The second part of the hearing was devoted to arguments about costs of the dismissal applications. The costs of and in respect of that part of the hearing should be part of the costs in respect of which the plaintiff is to pay 90 per cent of the defendants’ costs.
The costs recoverable by each defendant should include the incremental costs incurred on and in respect of the attendance on 26 June 2018 insofar as the hearing extended beyond pre-trial directions and addressed the issue of costs of the summonses.
Basis of costs order
The defendants seek orders that the plaintiff pay their costs on an indemnity basis fixed in a lump sum payable forthwith and that conditional dismissal orders be made if the costs are not paid within a specified time.
Standard or indemnity basis
The usual rule is that costs are ordered on the standard basis.[11] However, the Court has a discretion to order costs on the indemnity basis if there is good reason to do so.
[11]Supreme Court (General Procedure) Rules 2015 (Vic) rule 63.31.
The defendants contend that costs should be ordered on the indemnity basis because of the conduct of the plaintiff. However, the conduct of the plaintiff was not contumelious or in flagrant breach of the orders of the Court. Nor was the plaintiff’s conduct of such a character or degree as to justify an order that it pay the defendants’ costs on an indemnity basis. Costs should be on the standard basis.
Costs taxable now or on completion of action
The usual rule is that costs ordered on an interlocutory application are not to be taxed until the proceeding in which the order is made is completed.[12] However, the Court has a discretion to order that costs be taxed without waiting for the completion of the action if there is good reason to do so.
[12]Supreme Court (General Procedure) Rules 2015 (Vic) rule 63.20.1.
The defendants contend that, if the costs ordered are not taxed now, their security for costs up to the commencement of trial which was ordered by consent in December 2017 and has now been provided would be eroded because they have incurred costs of the dismissal applications that were not foreseen or allowed for when the amount of security for costs was fixed.
I accept the defendants’ contention in this respect. The security for costs ordered in December 2017 was intended as security for the ordinary pre-trial steps in the action. The defendants have incurred additional costs in respect of the dismissal applications and I have determined that the plaintiff should pay 90 cent of those costs on the standard basis. The plaintiff has not offered to increase the security for costs that it has provided to cover these additional costs nor suggested that this is an alternative to an order for taxation without awaiting completion of the action. Although I accept that there is a degree of inefficiency in a taxation of part only of the costs of an action, this is outweighed by the prejudice that the defendants would otherwise suffer if taxation is to await completion of the action.
Costs taxed or fixed in lump sum
The defendants invite me to fix the costs awarded in their favour in lump sums rather than proceeding to taxation. The plaintiff concedes that there is power to fix costs in a lump sum[13] but submits that this is inappropriate given the quantum sought by the defendants and the fact that the plaintiff disputes the elements which make up that quantum.
[13]Supreme Court (General Procedure) Rules 2015 (Vic) rule 63.07(2).
The third defendant seeks an order that the plaintiff pay his costs fixed in the lump sum of $42,229. The third defendant provided a breakdown of his costs between solicitor fees, counsel fees and other disbursements which breakdown exceeded the amount sought. The first defendant seeks an order that the plaintiff pay its costs fixed in the lump sum of $26,282.81 and the second defendant seeks an order that the plaintiff pay his costs fixed in the lump sum of $20,000. In each case they also provided a breakdown and in the case of the second defendant the total of the breakdown exceeded the amount sought if fixed on a lump sum basis.
Typical cases in which it will be appropriate to fix costs on a lump sum basis will be when the number of items in respect of which costs are claimed is relatively small and/or the amount of costs is relatively small and/or there is little dispute about the amount of the costs and the Judge can relatively easily fix the quantum albeit using a broad axe to a greater or lesser extent.
In this case, the total costs sought by the defendants are almost $90,000, there are many items in respect of which costs are claimed and there are substantial disputes. This is a matter in which the costs should be determined by the Costs Court which has specialist expertise in determining costs.
In addition, as observed above a taxing officer would be in a much better position than I to determine the extent to which it was reasonable for the three defendants to incur the costs which they did and the extent to which costs incurred by any one defendant were by reason of duplication not reasonably incurred.
While it will be entirely a matter for the Costs Judge, this is a matter in which it may well be appropriate that the taxation of costs be escalated to be heard by the Costs Judge.
Conditional dismissal order if costs not paid
The defendants seek an order that the action be dismissed if costs ordered are not paid within a specified time. The plaintiff concedes that there is power to make such an order[14] but contends that this is inappropriate.
[14]Supreme Court (General Procedure) Rules 2015 (Vic) rule 63.03(3).
I accept the plaintiff’s contention in this respect. The plaintiff has now provided security for costs totalling $910,000. There is no basis to find at this point that the plaintiff will not pay the costs ordered after they have been taxed or is unlikely to do so. It is impossible to predict at this point the circumstances that might exist if the plaintiff does not in fact pay such costs. It is inappropriate to exercise the discretion conferred by rule 63.03(3) in advance. If the plaintiff does not in fact pay the costs after they have been taxed, there is nothing to prevent the defendants applying for a conditional dismissal order under rule 63.03(3) at that point.
Conclusion
I make the following orders:
1. The plaintiff is to pay 90 per cent of the first defendant’s costs of its summons dated 18 April 2018, 90 per cent of the second defendant’s costs of its summons dated 17 April 2018 and 90 per cent of the third defendant’s costs of its summons dated 18 April 2018 (such costs to include the incremental costs incurred on the attendance on 26 June 2018 insofar as the hearing extended beyond pre-trial directions and addressed the issue of costs of the summonses).
2. The costs the subject of order 1 are to be taxed without awaiting completion of the action. The question whether and if so to what extent the costs of any defendant should be reduced on account of duplication is to be determined by the taxing officer as part of the taxation.
3. Certified fit for senior counsel for the third defendant.
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