Automotive Brands Group Pty Ltd v Fu
[2015] VCC 456
•27 April 2015
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted |
AT MELBOURNE
COMMERCIAL DIVISON
GENERAL LIST
Case No. CI-13-06130
| AUTOMOTIVE BRANDS GROUP PTY LTD | Plaintiff |
| v. | |
| JEFFREY FU & ORS | Defendants |
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JUDGE: | His Honour Judge Anderson | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20-22 April 2015 | |
DATE OF JUDGMENT: | 27 April 2015 | |
CASE MAY BE CITED AS: | Automotive Brands Group Pty Ltd v. Fu & Ors | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 456 | |
REASONS FOR JUDGMENT
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Catchwords: Guarantee by directors of franchisee’s obligations – Termination of franchise agreement – Default notice served in April 2013 – Franchisor later assisted franchisee to refinance borrowings in order to clear its debt to the franchisor – Whether franchisor estopped from relying on the default notice as the basis for terminating the franchise agreement in October 2013 – Termination effective – Franchisee and guarantors liable to pay outstanding debts to franchisor.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R. Harris of Counsel | Milton Graham Lawyers |
| For the First and Second Defendants | Mr D. Carlile of Counsel | Starnet Legal |
HIS HONOUR:
1Jeffrey Fu, Peter Rodaro and Vanh Han Trang (the defendants) were the directors of a company JVP Australia Pty Ltd (JVP), which in 2008 became an Autobarn franchisee at Penrith in New South Wales. The plaintiff is the successor of the entities trading as Autobarn and they will generally be referred to in these reasons as Autobarn.
2JVP operated the franchise business until 22 October 2013 when the franchise agreement and the sub-lease of the business premises were terminated. A default notice had been served in April 2013 alleging that JVP owed substantial sums pursuant to the franchise agreement (for stock purchases and advertising). JVP also owed money under the sub-lease and an earlier loan agreement.
3Between April and October 2013, discussions occurred between Mr Fu on behalf of JVP and representatives of the franchisor. The objective was allow JVP to refinance its borrowings so that it could “clear the debt owed to the franchisor” and reach an accommodation with other creditors which would allow JVP to continue trading.
4The franchisor extended the time for payment of the debt. It granted a fresh sub-lease to JVP and made arrangements for a new franchise agreement to be prepared and executed by JVP.
5After the termination of the franchise agreement, JVP went into liquidation on 29 October 2013. In the present action, the directors were sued as guarantors of the company’s obligations under the franchise agreement, sub-lease and loan agreement. Default judgement was entered against Mr Trang.
6Mr Fu and Mr Radaro claim that the termination of the franchise agreement was ineffective, principally because the franchisor by its actions in
a.extending time for payment and entering into arrangements which anticipated a continuing relationship with JVP;
b.representing that it would permit JVP to refinance its borrowings with a view to clearing the debt to the franchisor.
It was alleged that Autobarn had engaged in unconscionable conduct and was estopped from relying upon the notice of default as a basis for the termination of the agreement and the sub-lease.
7On 20 April 2015, at the start of the trial, first and second defendants’ counsel, Mr Carlile, made an application to split the trial in order to defer consideration of the quantum of the counterclaim. This led to an application for leave to file a defence to the amended statement of claim and an amended counterclaim. I refused the application. A second application to file an amended pleading was foreshadowed by Mr Carlile on 21 April. I continued with the trial and indicated that a decision would be made on the defendants’ application when judgment was delivered.
8Apart from the matters relating to the amended defence and counterclaim, the issues to be determined in the proceeding are:
a.was the franchisor entitled to terminate the franchise agreement and the sub-lease by notices dated 22 October 2013;
b.alternatively, as a result of the franchisor’s conduct, including representations made by its employees, was the franchisor unable to rely upon the notice of default as a basis for terminating the franchise agreement and the sub-lease;
c.if the franchisor were entitled to terminate the franchise agreement, to what sum is it entitled to be paid by the defendants;
d.if the franchisor were not entitled to terminate the franchise agreement:
i. to what sum is the franchisor entitled to be paid by the defendants, notwithstanding the wrongful termination of the franchise agreement;
ii. are Mr Fu and Mr Rodaro entitled to succeed in their counterclaim, as assignees of JVP’s rights, for damages to be assessed at a later hearing.
Background
9In late 2008, JVP commenced trading as the Autobarn outlet in Penrith. JVP sub-leased the business premises and its obligations were guaranteed by Mr Fu and Mr Trang. A franchise agreement was entered into with a separate guarantee and indemnity executed by the three directors.
10Soon there were concerns expressed by Autobarn about the level of capital invested in the business and the relatively low levels of general stock that were maintained. Problems also developed between the directors.
11On 15 December 2011, a notice of default was served on JVP claiming that, under the franchise agreement, the sum of $185,155.73 was owing for products purchased, and $64,046.99 for advertising and other fees. Following negotiations, a deed of loan was entered into with Autobarn as to the amount owing, with JVP’s borrowing being guaranteed by the three directors.
12During 2012, Mr Fu and Mr Rodaro explored options for excluding Mr Trang from the company. One option involved abandoning the company, its creditors and Mr Trang by setting up a new company without Mr Trang. The Australian Taxation Office was owed about $130,000 by JVP. This option was discussed by Mr Fu with Autobarn but Mr David Barnden, Autobarn’s Australian Retail Manager, said the proposal was rejected.
13In 2012, Autobarn was restructured. This involved the assignment of the rights of JVP as the sub-lessee and the franchisee of Penrith Autobarn. Notice of these matters was given to JVP and its directors.
14On 24 April 2013, a further notice of default was served on JVP claiming amounts owing under the franchise agreement, for products ($132,700.49) and for advertising and other fees ($25,965.86).
15Following a conversation between Mr Fu and Mr Barnden on 8 May 2013, the time for payment of the amounts owing was extended. A second extension on 27 May 2013 was to 10 June 2013.
16The letter dated 27 May 2013, and an earlier letter of extension dated 9 May, concluded with the following paragraph:
Please ensure that all money owing to us is paid by the date stipulated above otherwise we will have no alternative but to terminate your franchise agreement and issue legal recovery proceedings against you.
17There was some dispute as to what was said in the telephone conversation between the parties on 8 May 2013. Mr Barnden said that he told Mr Fu that any extensions did not affect the continued validity of the default notice. Mr Fu could not recall any such conversation. I consider that Mr Barnden’s evidence should be accepted, particularly as the two letters on 9 and 27 May reserved Autobarn’s rights under the default notice.
18The purpose of the extension of time was to allow JVP the opportunity to refinance its borrowings so that it could bring itself within its trading terms with Autobarn, and to pay other creditors. Generally, the trading terms for stock purchases by JVP was payment within 30 days after the end of the month of supply.
19Over the following months, Autobarn’s representations sought to assist Mr Fu and Mr Rodaro to obtain finance through the National Australia Bank. It was understood that this would involve:
a.a tri-partite agreement between the NAB, Autobarn and JVP;
b.a new franchise agreement between Autobarn and JVP;
c.a new sub-lease.
20The new sub-lease was also necessary because JVP had been overholding on a month to month basis and the property had been sold. JVP went into possession under the new lease on 16 August 2013.
21Autobarn did not execute the new franchise agreement or the tri-partite agreement, although it had requested JVP to do so. Autobarn continued to supply stock to JVP up to about 21 August 2013.
22The Franchise Tri-partite Deed was apparently prepared by NAB in mid-August 2013. The deed was executed by JVP but not by Autobarn or NAB. In certain respects the document does not appear to be in final form. Presumably the document was intended to by supported by guarantees given by Mr Fu and Mr Rodaro, although guarantees were not prepared or executed.
23On 22 August 2013, Mr Simon Sincock, Autobarn’s Commercial Manager, sent an email to Mr Fu headed “Penrith re finance and ABG [Autobarn Group] debt” which, in part, read as follows:
“As you know, your refinance with the NAB is near finalisation. Accordingly, we require your ABG debt to be extinguished with the applications of funds when received. Please advise funds draw down amount and date, so that we can expect payment. As at the date of this email, your outstanding debt to ABG totals $240,822.14 …
I also remind you that your Franchise Breach Notice remains in place and satisfactory payment of AMBG debt is required in order to rectify the current outstanding breach. Further, you with be on stop supply with ABG until a time that you are within trading and retail account terms”.
24Mr Fu’s response on 22 August 2013 was as follows:
“Further to our discussions. Once I have signed documents with the bank, I will let you know the draw down. I understand the situation and please note that I am doing my best to rectify it”.
25Mr Barnden apparently spoke with Mr Fu in the last week of August 2013. The conversation is summarised in an email dated 2 September to Mr Peter Tilley, the Retail Director and Mr Barnden’s direct superior at Autobarn. Mr Barden had been told by Mr Fu that $482,000 would be obtained from NAB. Although $180,000 was owed to creditors, it was planned that JVP would only pay $70,000 to general creditors and $77,000 to the Australian Taxation Office. Autobarn would be paid $140,000, out of a total of the $170,000 Mr Barnden told Mr Tilley was owed to Autobarn. In addition, Mr Fu would be asking for Autobarn to “provide further stock on extended terms” with “$60-70K on a payment plan”.
26On 18 September 2013, a meeting took place at Autobarn’s Melbourne office. Mr Fu and Mr Rodaro attended. Autobarn was represented by Mr Barnden, Mr Shane Logan (the General Manager, Network Development) and Mr Sincock. Mr Logan had spoken with Mr Fu on a number of occasions between May and September 2013. He said that before the meeting on 18 September, he had been trying to establish whether the re-financing of $486,000 “would consolidate the debt” to Autobarn. At that time, the debt was about $280 to $300,000, as follows:
$102,000 – rent and outgoings
$150 – 170,000 – stock purchases
$31,000 – the balance of the loan amount owing.
27At the meeting, Mr Fu said that the refinance from NAB would not be enough to pay out Autobarn and asked that $150-$200,000 be placed in a loan account. In order to determine, whether JVP could service the level of debt proposed, the meeting examined the turnover of the business (about $40,000 per week in sales). The gross profit from sales was about $16 or $17,000 per week. The outgoings needed to meet repayments for borrowings, wages, taxation, superannuation and similar commitments was about $20,000.
28The short fall of $3-$4,000 per week (or up to $200,000 per annum) was a matter of concern. Mr Fu and Mr Rodaro were asked to go back to their financial advisors and come up with a feasible proposal. So far as the Autobarn representatives were concerned, the purpose of the refinancing had been to extinguish the debt to Autobarn. Mr Logan said that, following the meeting, “it was obvious that this would not happen”.
29There was no discussion at the meeting that Autobarn would not pursue the notice of default served in April 2013. Autobarn’s continued intention to rely on the notice was reaffirmed in the letters in May 2013 and the email from Mr Sincock to Mr Fu dated 22 August 2013.
30On 26 September 2013, Mr Fu wrote to Mr Barnden an email which reads as follows:
“Attached is our budget and drawdown if we are able to come to an agreement to get the funding from NAB.
In order for us to achieve these goals I would kindly like to ask for the following assistance:
Currently owing to Automotive Brands is a total of $321,533.35 which includes a trading account balance of $171,046.03, old loan account of $31,636.00, outstanding rent/adv/royalty account balance of $102,243.65 and September rent of $16,607.67.
1. From the bank funding we would like to pay $102,243.65 upfront
2. The remaining $219,289.70 to be put on a loan account with an interest rate of 10.5% p.a. or less if possible. We will do our best to pay this off early if possible.
3. No advertising / royalties for a period of 1 year if possible. This will help us out of the “red zone” in the “Budget” section.
We will be able to bring our business back to or above the 2.6mil mark within 1 year.
Currently outstanding to other creditors is $175,153.32.
1. We will be able to get a reduction of $50,000.00 in this total amount by agreeing to build 4 demo vehicles for LPF Industries. This will reduce the total outstanding creditor amount to $125,153.32 which we will pay via the bank funding.
2. After paying out the ATO ($79,717.00), current CBA loan ($147,482.00) and Vanh ($40,000.00), this will leave us with a clean slate to build ‘the right’ stock inventory for our store which will lift our sales figures.
With the assistance of Automotive Brands / Metcash, I believe we will be able to lift the sales figures of Autobarn Penrith to a profitable margin. I hope that we can work together to achieve the common goal of profitability after the unfortunate events that had unfolded within Autobarn Penrith.
Please give me a call or email if you require any further information.
31Mr Barnden said that subsequently he “would have spoken to Mr Fu and Mr Rodardo and told them that the proposal in the letter dated 26 September 2013 was unacceptable”.
32On 18 October 2013, Mr Fu sent a text message to Mr Dumbrell, the CEO of Autobarn, asking him to call him as “no one is returning my call regarding the future of my store”. Mr Dumbrell did not speak with Mr Fu.
33On 22 October 2013, notices were served on JVP terminating the Franchise Agreement and the sub-lease. The following day, Autobarn retook possession of the Penrith store with the assistance of security personnel. Mr Fu and Mr Rodaro later attended the premises. They were both very angry. In conversation with Mr Barnden, Mr Fu admitted that there was a debt owing to Autobarn.
34Arrangements were made for the return of the stock, for which Autobarn later credited JVP. Other stock was released at the request of Mr Fu. Mr Fu wrote to Mr Barnden on 25 October 2013 alleging that the termination of the Franchise Agreement was “unlawful” and “unconscionable”. Mr Fu asserted that Autobarn had granted JVP “an unspecified extension of time to make payment accounts on the knowledge that I was in the process of organising the re-finance with NAB”.
35In about December 2013, Autobarn entered into a further Franchise agreement relating to the Penrith Autobarn with another party.
Second application to file an amended defence and counterclaim
36The first application on 20 April 2015 was refused. The second application was made on 21 April 2015 and requires to be considered before the issues in the case can be determined.
37The application was made in the context that –
a.it was foreshadowed on the second day of the trial after the first application had been refused;
b.it contained most of the matters in the proposed pleading rejected on 20 April;
c.the orders of His Honour Judge Cosgrave made 31 October 2014 required the amended defence to the amended statement of claim to be filed by 1 December 2014;
d.On 2 December 2014, the solicitor for the first and second defendants indicated that the amended pleadings “are still being drafted”.
e.at a Directions Hearing on 30 January 2015, the solicitor confirmed to the plaintiff’s lawyers that the “pleadings would be technical in nature by being limited to the issue of an assignment from the liquidator” of JVP’s right to counterclaim;
f.by letter dated 19 march 2015, the defendants’ solicitor noted that “new counsel has been retained to prepare an amended defence and an amended counterclaim”.
38The latest draft of the pleading raises the following matters:
a.a duty on the franchisor “not to diminish or impair the franchise business being an asset for which security was granted” which was breached by the plaintiff terminating the franchise agreement and sub-lease and re-entering the business premises;
b.the default notice dated 24 April 2013 was defective because it claimed the sum of $132,700.49 as outstanding, whereas the supporting documentation showed a debt due of $122,429.91.
c.certain conduct by the plaintiff between 24 April and 22 October 2013 was relied upon as disentitling the plaintiff from terminating the franchise and the sub-lease. The conduct included:
i.the delivery of stock;
ii.entering into a new sub-lease;
iii.demanding the execution of a new franchise agreement;
iv.anticipating that it would be a party to a the new franchise agreement and a tripartite agreement with the NAB
v.participating in extensive discussions about JVP refinancing of its borrowings.
d.the plaintiff had affirmed the December 2008 Franchise Agreement and waived of its entitlement to rely upon the 24 April 2013 default notice;
e.by reason of JVP’s execution of the new franchise agreement on 6 September 2013 and its delivery to the plaintiff, the plaintiff “was not entitled to rely upon any breaches by the franchisee of the December 2008 franchise agreement”;
f.the proceeding should be stayed because clause 14.8 of the sub-lease provided that the parties “consented to the exclusive jurisdiction of the Courts of New South Wales”.
39Mr Carlile conceded on the morning of 22 April 2015 that “the conduct of the trial” would not be affected if consideration of the amendment application was deferred, as it was “really just a recasting of the current evidence”.
40During the cross-examination of Mr Barnden by Mr Carlile on 22 April 2015, Mr Carlile raised the issue of the sale of the Perth franchise by Autobarn in December 2013. Mr Carlile submitted that the proceeds of sale should be taken into account in determining the plaintiff’s entitlement. Mr Carlile had submitted on 20 April 2015 that this was likely to be a benefit to the plaintiff and should be deducted from the plaintiff’s claim because otherwise it would be “unjustly enriched”.
41This matter was not pleaded in the defence, although Mr Carlile submitted that the defendants were not required to do so as the quantum of the plaintiff’s claim had been denied.
42I consider that there would be significant unfairness to the plaintiff if the application were allowed. Accordingly, the second application by the first and second defendants to amend their defence and counterclaim should be refused for the following reasons:
a.the lateness of the application;
b.the lack of prior notice to the plaintiff of the nature of some of the matters raised;
c.the present pleadings adequately allow the defendants to argue the substantial matters of defence and counterclaim;
d.the proposed further defences are largely without substance.
43The further defences sought to be raised by the first and second defendants can be briefly dealt with:
a.In regard to the alleged duty to maintain and not diminish the franchise business, Mr Carlile submitted in his final address that the plaintiff had breached its obligation to maintain the security constituted by the franchise business. Mr Carlile submitted that this obligation arose because the directors had guaranteed “the continued operation of the guaranteed business”. They therefore had a right of recourse against the assets of the business and could require the plaintiff to maintain the franchise business.
Mr Carlile submitted that the business had been destroyed by the plaintiff’s conduct in terminating the franchise agreement and sub-lease and re-entering the business. As a consequence of the franchise business having been destroyed, the defendants, as guarantors, were prevented from realising the security property. The defendants should therefore be discharged from their guarantees;
b.any misstatement of the amount then owing in the default notice dated 24 April 2013 would not affect the validity of the termination. See Doubikin Holdings Pty Ltd v Grail Pty Ltd (1991) 5 WAR 653 under the heading “validity of notice of default”;
c.the conduct of the plaintiff relating to the refinancing of JVP’s borrowings with NAB would not affect the validity of the termination of the franchise agreement of the sub-lease;
d.the proposed defence of waiver depends on the same facts as the defence of estoppel always relied upon by the first and second defendants;
e.the plaintiff’s conduct in relation to the new franchise agreement would not affect the validity of the termination;
f.the jurisdiction point was not raised in Mr Carlile’s final submissions. The first and second defendants had by their conduct in the proceeding submitted to the jurisdiction.
Effectiveness of the notice of termination
44I consider that the following conclusions in relation to the effectiveness of the termination of the franchise agreement and sub-lease are appropriate on the evidence:
a.the plaintiff, by its conduct including the statements of its employees, at no time indicated to JVP that it would not rely upon the default notice as a basis for terminating the franchise agreement and the sub-lease, if the default were not remedied;
b.the franchise agreement and the sub-lease were effectively terminated by the notices dated 22 October 2013 and the re-entry of the business premises the following day. Autobarn had followed the contractual processes for terminating the franchise agreement;
c.the plaintiff was entitled to recover the sums owing to it by JVP, from each of the guarantors;
d.the plaintiff is not obliged to account to JVP or the defendants for the consideration in the franchise agreement entered into by the plaintiff in December 2013. The claims in the proceeding were for debts arising from breaches of JVP’s obligations under a number of agreements, and the guaranteeing of those obligations by the defendants;
e.JVP and the defendants remained liable to the plaintiff notwithstanding the circumstances in which –
i.the franchise agreement executed by JVP in September 2013 was returned to the plaintiff;
ii.the plaintiff terminated the December 2008 franchise agreement and sub-lease and re-entered the business premises.
45In the defence and counterclaim filed by each of the first and second defendants on 14 February 2014, the critical allegation is the pleading of a representation by Autobarn in paragraph 12. It was alleged that Autobarn, “in and between 24th April 2013 and 30th May 2013” in “various conversations” by telephone that “it would grant the franchise an extension of time within which to clear the debt owed to the franchisor provided that the franchisee secured re-finance with the accredited lender, National Australia Bank” (emphasis added);
46Further and better particulars of the pleading were given on 2 April 2014. The particulars referred to:
a.telephone conversations between Mr Fu and Mr Barnden in about May 2013;
b.a conversation between Mr Fu and Mr Bill Klinikos (of Autobarn) “after NAB had provided conditional finance approval”;
c.a meeting between Mr Fu and Mr Redaro with Mr Barnden, Mr Logan and Mr Sincock in Melbourne in about September 2013.
47The representation was restated in the following terms:
“Since April 2013, the franchisor stated that as long as the defendants obtained further finance, no steps would be taken with respect to the said default notice”.
48In final submissions, Mr Carlile relied upon a further refinement, namely that the representation and the plaintiff’s conduct in relation to the refinancing, the new lease and the new franchise “were all discussed with a view to continuing the franchise”. The continuation of trading and the delivery of stock were also indications that the parties were “looking…to moving forward”. It was submitted that this was inconsistent with the termination of the franchise agreement and the sub-lease.
49The later formulations ignore the critical feature of the original pleading, namely that the purpose of the refinancing was so that JVP would “clear the debt” owed “to Autobarn”.
50At all times, Autobarn and its employees did all that they could to assist JVP with its refinancing. This included:
a.being prepared to enter into the tripartite agreement with NAB, a new franchise agreement and a new sub-lease;
b.continuing to provide stock to JVP.
51The purpose of the meeting on 18 September 2013 was to examine how the draw down, in accordance with the proposed refinance, would be used to pay JVP’s creditors including Autobarn and whether JVP’s financial committments would allow it to continue trading effectively. The meeting terminated with Mr Fu and Mr Redaro understanding that they were to address these issues in further discussions with their financial advisers.
52The letter from Mr Fu to Mr Barnden dated 26 September 2013 was the only further contact of substance received by the plaintiff after the meeting on 18 September. Mr Barnden indicated to Mr Fu that the proposal in the letter dated 26 September was unacceptable. No further proposal was made by JVP to “clear the debt”.
53Autobarn had made it clear to JVP’s directors by the letters from Mr Barnden dated 9 and 27 May 2013 and the email from Mr Sincock dated 22 August 2013 that, unless the debt was paid, the April default notice remained in place. In relation to the latter communication, Mr Fu acknowledged that he “understood the situation” and was doing his “best to rectify”.
54In the circumstances, the termination should have come as no surprise. Since the April default notice, JVP and its directors had been on notice that Autobarn required JVP to rectify its breaches of the various agreements. The continued failure to meet those commitments entitled the plaintiff to terminate the franchise agreement and the sub-lease.
Quantum of the Plaintiff’s claim
55The plaintiff’s claims are for debts owing by JVP as follows:
a.$31,636, the balance of the deed of loan entered into on 27 January 2012 following the service on a notice of default on 15 December 2011;
b.$53,451.65, for rental and $6,000.51 for outgoings pursuant to the sub-lease dated 1 December 2008;
c.$37,695.18, for rental and $12,803.80 for outgoings pursuant to the sub-lease commencing 16 August 2013;
d.$55,074.57, for stock charges under the franchise agreement being unpaid invoices totalling $166,041.77, less $110,967.20 credits allowed for the return of goods following the re-entry on 23 October 2013.
56The defendants did not dispute these figures or further calculations for interest and the responsibility of the individual directors for particular sums. In the circumstances, it is appropriate that judgment be entered for the plaintiff against the first and second defendants, as follows:
a.against the first defendant that the first defendant pay to the plaintiff the sum of $246,710.25 together with interest pursuant to the deed of loan on the amount outstanding of $31,636 at the rate of 7% per annum, of $5,114.63 and interest pursuant to statute on the other amounts outstanding, of $32,408.46, total judgment $284,233.34;
b.against the second defendant, that the second defendant pay to the plaintiff the sum of $187,258.09 together with interest pursuant to the deed of loan on the amount outstanding of $31,636 at the rate of 7% per annum, of $5,114.63 and interest pursuant to statute on the other amounts outstanding, of $23,449.91, total judgment $215,822.63.
57Judgment was entered against the thirst defendant in default of appearance on 22 December 2014 in the sum of $238,082.98 (including costs of $2,560). The calculations submitted by plaintiff’s counsel, Mr Harris, show that the correct figure should be $226,124.92 which together with costs of $2,560 totals $228,684.92.
58I will order pursuant to the “slip rule” that the judgment entered against the third defendant in default of appearance on 22 December 2014, including interest and costs be amended from $238,082.98 to $228,684.92.
59One further outstanding matter relates to the quantification of the plaintiff’s costs of the day on 20 April 2015 which was devoted largely to the defendants’ first unsuccessful application to amend their pleadings. The plaintiff claimed $6,806.20. This included $1,600 for the solicitor’s attendance all day at a charge out rate of $320 per hour for 5 hours rather than the scale item of two half days at $546 or $1,092 for the day. I consider that I should allow the plaintiff’s costs in the full amount that it claimed of $6,806.20. The difference in the amounts is relatively minor and in view of the circumstances of the application, the plaintiff should recover all its costs of that day.
60I will hear from the parties further before making formal orders including orders as to the costs of the proceeding. These costs will include the cost of transcript for 20 April 2015.
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Certificate
I certify that these 14 pages are a true copy of the reasons for decision of His Honour Judge Anderson delivered on 27 April 2015.
Dated: 27 April 2015
Mi-Lin Chen Yi Mei
Associate to His Honour Judge Anderson
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