Ballymoss Pty Ltd v Kollaras and Co Pty Ltd (No 3)

[2021] VCC 1721

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE
COMMERCIAL DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CI-20-02138

BALLYMOSS PTY LTD (ABN 16 006 923 717) trading as Monacellars	Plaintiff
v
KOLLARAS & CO PTY LTD (ABN 85 001 919 884) trading as Kollaras Trading Company	Defendant
and
VP BRANDS INTERNATIONAL PTY LTD (ACN 614 813 384) trading as All Stars Liquor	Third Party

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JUDGE:	HIS HONOUR JUDGE COSGRAVE
WHERE HELD:	Melbourne
DATE OF HEARING:	13 October 2021
DATE OF RULING:	8 November 2021
CASE MAY BE CITED AS:	Ballymoss Pty Ltd v Kollaras & Co Pty Ltd (No 3)
MEDIUM NEUTRAL CITATION:	[2021] VCC 1721

RULING
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Subject:COSTS

Catchwords:              Indemnity costs

Cases Cited:Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; Ugly     Tribe Co Pty Ltd v Sikola (2001) VSC 189

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	G L Meehan with M D Dean	Rennick & Gaynor
For the Defendant For the Third Party	D B Bongiorno M LaPirow	Holding Redlich Davies Moloney

HIS HONOUR:

1. On 25 October 2021, I handed down reasons for refusing an application by the defendant (“Kollaras”) to file an amended counterclaim. At the conclusion of the judgment I set out the orders that I proposed to make subject to the receipt of submissions by the parties.

2. The plaintiff (“Ballymoss”) objected to the proposed orders and set out the orders which it sought as follows:

   (a)striking out paragraphs 4 to 6 (inclusive) of the Amended Counterclaim dated 13 September 2021, being that part of the pleading founded on the false Export Allegation;

   (b)that Kollaras pay the legal costs of Ballymoss of and incidental to, and thrown away by reason of, the order in (a) above on an indemnity basis pursuant to section 29(1)(a) of the CPA;

   (c)setting aside the costs order made on 7 September 2021 and an order, in lieu thereof, that Kollaras pay the legal costs of Ballymoss of and incidental to the summons filed 31 May 2021, on an indemnity basis pursuant to section 29(1)(a) of the CPA;

   (d)that Kollaras pay Ballymoss’s costs of and incidental to the application made 13 October 2021, on an indemnity basis pursuant to section 29(1)(a) of the CPA;

   and that all such costs be payable immediately and be enforceable immediately pursuant to section 29(1)(b) of the CPA, and further in default of agreement be taxed immediately pursuant to Order 63A.20.1.

1. Ballymoss’s proposed orders included the setting aside of an order made on 7 September 2021 in relation to a separate application. It is unhelpful when parties make claims which they should know are misconceived. Once an order of the County Court is authenticated, it can be changed in special circumstances pursuant to the slip rule. Otherwise, a party must appeal the order to challenge it. In this case, there was no slip and no appeal in relation to the order made on 7 September 2021.

2. Kollaras sought leave to file late some responsive submissions. After Kollaras filed its document Ballymoss filed and served additional material. This comprised tax invoices and export declaration documents.  Again, this prompted Kollaras to seek a further opportunity to file an explanatory affidavit. In circumstances where Ballymoss filed the additional documents without leave and the alleged significance of the documents has not been explained to the court or debated by the parties, I do not propose to take the additional material into account in addressing the costs issue. Accordingly, I do not grant leave to Kollaras to file any additional material.

3. I will not make any of the Ballymoss proposed orders (a) – (c), partly for the reason set out above and partly because the other two orders depend upon matters which should be determined at trial after full argument. An interlocutory dispute where the proposed orders are not specifically raised by the moving party is not an appropriate forum for such orders. Other considerations aside, there is an absence of natural justice where Kollaras was not on proper notice about the issues raised and the potential effects which might follow if the Ballymoss contentions were accepted

4. I have read and considered the submissions filed by the parties, the circumstances of the application by Kollaras and relevant authorities about the making of special costs orders on a higher than usual scale[1] as well as granting leave to tax costs before the conclusion of a proceeding. On the material before me, especially the submissions of Ballymoss, I am not persuaded that I should depart from the orders referred to in the conclusion of my ruling. Costs is a topic about which reasonable minds can differ. The conduct of Kollaras, while perhaps being close to the line at which indemnity costs might reasonably be ordered, has not in my view crossed that line. Further, I see no sufficient reason to exercise the discretion conferred in Rule 63A.20.1 to permit the commencement of taxation before the completion of the proceeding.

   [1]This includes cases such as Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225, 233-4, Ugly Tribe Co Pty Ltd v Sikola (2001) VSC 189, [7] plus those referred to in the submissions. The principles are well established and no purpose is served by setting them out in detail.

5. Accordingly, I order that:

   (a)the application by the defendant to file an amended counterclaim be dismissed;

   (b)the defendant pay the plaintiff’s costs of and incidental to the application, such costs to be taxed on a standard basis in default of agreement.