Apollo General Engineering (Aust) Pty Ltd v Culve Engineering Pty Ltd

[2013] VCC 81

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted

AT MELBOURNE

COMMERCIAL LIST
GENERAL DIVISION

Case No. CI-11-02682

APOLLO GENERAL ENGINEERING (AUST) PTY LTD	Plaintiff
v.
CULVE ENGINEERING PTY LTD	Defendant

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JUDGE:	His Honour Judge Anderson
WHERE HELD:	Melbourne
DATE OF HEARING:	19 February 2013
DATE OF JUDGMENT:	19 February 2013 (revised 22 February 2013)
CASE MAY BE CITED AS:	Apollo General Engineering (Aust) Pty Ltd v. Culve Engineering Pty Ltd
MEDIUM NEUTRAL CITATION:	[2013] VCC 81

REASONS FOR JUDGMENT

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Catchwords:             Practice and procedure – Application to join two further defendants and to amend the statement of claim to pursue an entirely new claim against the existing defendant – Application made two days before the trial date – Three previous trial dates vacated – No adequate explanation for the late application – Plaintiff still able to pursue all three defendants in a fresh proceeding – Action dismissed with costs. 

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S. Maiden	Thomsons Lawyers
For the Defendant	Ms C. Rome-Sievers	Baker Jones Lawyers

HIS HONOUR:

1The proceeding is fixed for trial commencing 21 February 2013. This is the fourth time the proceeding has been fixed for trial. The plaintiff by summons filed 15 February 2013, seeks an order that the trial date be vacated. It also seeks orders adding two further defendants and amending the writ and statement of claim.

2Although the form of the proposed amended statement of claim has not yet been finalised, it is apparent that the claim made against the existing defendant is to be recast and the claim made to date is to be abandoned. It has been stated on behalf of the plaintiff that the reason the claim has been recast against the existing defendant is that the defendant in a proposed amended defence delivered in draft form on 30 May 2012, made certain allegations which have caused the plaintiff to re-examine the claim and effectively to abandon that claim and reformulate it. Although the draft defence was delivered on 30 May 2012, the contents of the draft defence were foreshadowed in correspondence at the end of March 2012. The amended defence was not filed until 2 November 2012. The delay of the plaintiff between 30 May 2012 and the making of the applications by summons dated 15 February 2013 is largely unexplained. The plaintiff is in liquidation and the liquidators have no doubt needed to satisfy themselves in accordance with their responsibilities that the reformulation of the claim was appropriate. Nevertheless, there is very little material which has been proffered to explain the lengthy delay which has occurred and, particularly, the fact that the application has only been brought before the Court two days before the anticipated trial date.

3The plaintiff’s draft amended statement of claim also seeks to join a second company as a defendant and as a third defendant, the sole director of the plaintiff, the defendant and the proposed defendant. The three corporate entities were related and the proposed claims made against the three proposed defendants clearly have some commonality. It has been conceded by Mr Maiden, plaintiff’s counsel, that the plaintiff could bring each of the proposed claims against the three proposed defendants by issuing fresh proceedings and it would not be barred by the operation of Statute of Limitations, or any other reason, from doing so.

4In the circumstances, I need to consider the appropriateness of allowing the present proceeding to continue on a wholly different basis than it has proceeded since the issue of the action on 6 June 2011, and the appropriateness of joining in that proceeding claims against two further defendants.

5I consider that the appropriate course is to bring the present proceeding to an end by dismissal and to order that the plaintiff pay the defendant’s costs of the proceeding. The alternative would be less certain. The amended claim has not been finally formulated. The claim as against the present defendant is proposed to be completely reformulated.

6There was some discussion with plaintiff’s counsel as to whether the filing of an amended statement of claim would entitle the defendant to the whole of the costs of the proceeding to date or whether some portion of those costs could not truly be said to have been “thrown away”. I consider in the circumstances that this fact in itself makes it more appropriate to dismiss the present proceeding rather than leave unresolved a substantial but yet peripheral issue of the question of the costs which would be a consequence of the plaintiff making the proposed amendment to the statement of claim.

7The plaintiff has sought an order for costs, since the service of a draft amended defence on 30 May 2012, to be paid on an indemnity basis. From that date, the plaintiff had formal notice of the matters put in issue by the defendant and should have been able to reformulate its claim within a reasonable time. In fact what happened was that a further trial date on 28 August 2012 was vacated and the defendant has been put to further expense in preparing for the current trial without any certainty as to the basis upon which the plaintiff would proceed at the trial fixed for two days time.

8I consider that the basis for costs from a reasonable time after 30 May 2012 should appropriately be paid by the plaintiff on an indemnity basis. Accordingly I propose the following orders:

a.The proceeding be dismissed.

b.The plaintiff must pay the defendant’s costs of the proceeding including any reserved costs to be taxed in default of agreement; for costs incurred up to and including 30 June 2012 on a party/party basis and thereafter on an indemnity basis.

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Certificate

I certify that the preceding 2 pages are a true copy of the reasons for decision of His Honour Judge Anderson delivered on 19 February 2013 and revised on 22 February 2013.

Dated:  22 February 2013

Philippa Gilkes    

Associate to His Honour Judge Anderson