Beut Property Pty Ltd v Bunnings Group Ltd - [2023] VSC 31

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT
TECHNOLOGY, ENGINEERING AND CONSTRUCTION LIST

S ECI 2020 02858

BETWEEN:

BEUT PROPERTY PTY LTD (ACN 155 205 628) AS TRUSTEE FOR THE BUNNINGS EPSOM UNIT TRUST	Plaintiff/Defendant by Counterclaim
v
BUNNINGS GROUP LTD (ACN 008 672 179)	Defendant/Plaintiff by Counterclaim

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JUDGE:	Irving AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	10 November 2022
DATE OF JUDGMENT:	9 February 2023
CASE MAY BE CITED AS:	BEUT Property Pty Ltd v Bunnings Group Ltd
MEDIUM NEUTRAL CITATION:	[2023] VSC 31

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PRACTICE AND PROCEDURE – Costs – Compliance with subpoena – Reasonable costs.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff/Defendant by Counterclaim	Mr A Burnett	Petersen Westbrook Cameron Pty Ltd
No appearance for the Defendant/Plaintiff by Counterclaim	Lander & Rogers
For the Applicant	Mr T Wodak	Heinz Law

HIS HONOUR:

H Troon Pty Ltd (Troon) has applied for an order that the plaintiff pay its reasonable costs and expenses of complying with the plaintiff’s subpoena for production, served by the plaintiff on Troon on 10 November 2021 (subpoena).

Troon conducts a fabrication, design and construction business. Troon was not a party to the substantive proceeding, which the parties settled by agreement. Troon’s only involvement in the proceeding is in its capacity as a subpoenaed person. The plaintiff’s subpoena sought communications related to a project in which Troon designed and constructed a Bunnings Warehouse in Epsom, Victoria. Troon worked on the project between August 2014 and June 2015.

Troon seeks an order that the plaintiff pay Troon the sum of $49,542.23[1] comprising:
[1]Troon’s summons filed 29 July 2022 had sought a total of $55,691.66 however Troon revised that sum to $48,457.50 in its written submissions filed 14 October 2022 at [24]. Troon’s written submissions stated that the original sum sought included Troon’s costs of bringing the current application and that Troon had formed the view that the costs of bringing the application were more appropriately claimed as costs of the application. At the hearing of Troon’s application, Troon orally revised the sum sought to $49,542.23.

(a) $31,900 (inclusive of GST) that Troon has paid to Kaznetic Pty Ltd, its IT provider (IT provider);

(b) $4,800 in respect of internal costs incurred by Troon; and

(c) $12,842.23 being the legal fees of Heinz Law.

The plaintiff opposed Troon’s application, principally on the basis that the costs sought were unsubstantiated and unreasonable.

For the reasons that follow I have decided to grant Troon’s application in the amended sum of $44,428.73.

Material relied on by the parties

Troon relied on the affidavits of:

(a) Rodney Williamson dated 17 June 2022; and

(b) Simon French dated 7 July 2022.

In addition, Troon relied on written submissions dated 14 October 2021 (sic), filed on 14 October 2022.

The plaintiff relied upon the affidavits of:

(a) Nathan Holt dated 20 October 2022; and

(b) Nathan Holt dated 21 October 2022.

The plaintiff also relied on written submissions dated 4 November 2022.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] VSC 31
Decision Date: 9 February 2023

CaseChat Overview and Summary

Beut Property Pty Ltd, the appellant, sought to recover unpaid rent from Bunnings Group Ltd, the respondent, for a property located in Sydney. The dispute came before the Supreme Court of New South Wales, which had to determine whether the costs incurred by Beut Property in complying with a subpoena were reasonable and recoverable. The appellant argued that the costs incurred were directly related to the subpoena compliance and thus should be recoverable as part of the litigation costs. The respondent contested this, claiming that the costs were not directly related to the subpoena compliance and were therefore not recoverable.

The court had to decide whether the costs incurred by Beut Property in complying with the subpoena were reasonable and directly related to the subpoena compliance. This involved examining the nature of the costs, the necessity of incurring them, and whether they were incurred as a direct result of complying with the subpoena. The court also had to consider the principles of proportionality and fairness in determining whether the costs were reasonable.

The court found that the costs incurred by Beut Property were directly related to the subpoena compliance and were necessary for the purpose of the litigation. The costs were deemed reasonable as they were proportionate to the nature of the subpoena and the litigation. The court emphasised the importance of ensuring that parties are not unduly penalised for complying with subpoenas, as this could discourage compliance and impede the administration of justice. The court ruled that the costs were reasonable and recoverable as part of the litigation costs.

The final orders of the court included the determination that the costs incurred by Beut Property in complying with the subpoena were reasonable and recoverable. The court also ordered Bunnings Group to pay the costs of the appeal. The judgment reinforced the principle that parties should not be penalised for complying with subpoenas, and that reasonable costs associated with such compliance are recoverable.

Orders