Bluescope v Beerens (No 2)

[2011] VCC 353

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
COMMERCIAL

GENERAL DIVISION

Case No. CI-10-01593

BLUESCOPE DISTRIBUTION PTY LTD	Plaintiff
(ACN 096 380 068)
v
THOMAS BEERENS	First Defendant
and
KIRSTEN FIONA BEERENS	Second Defendant

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JUDGE:	HIS HONOUR JUDGE GINNANE
WHERE HELD:	Melbourne
DATE OF HEARING:	23 March 2011
DATE OF JUDGMENT:	7 April 2011
CASE MAY BE CITED AS:	Bluescope v Beerens & Anor (No 2)
MEDIUM NEUTRAL CITATION:	[2011] VCC 353

REASONS FOR JUDGMENT

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Catchwords: Costs – whether claim should have been made in earlier proceeding – costs of second proceeding.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T R Messer and	Turks Legal
Mr K J Naish
For the Defendants	Mr M D Wyles SC and	Foster Nicholson Legal
Ms R L Kaye
HIS HONOUR:

1          I delivered judgment in this proceeding on 23 March 2011 and then heard arguments as to costs.

2 Mr and Mrs Beerens argued that they should not be ordered to pay Bluescope Distribution Pty Ltd’s costs, but rather it should be ordered to pay their costs, because the proceeding should not have been commenced. Rather, an application in the proceedings between Bluescope Distribution Pty Ltd and Mr Thomas Beerens, CI-09-01729 ( the first proceeding) should have been made to amend the Statement of Claim and claim the relief sought in this proceeding. The issues were the same in both proceedings. The overarching purpose of s.7 of the Civil Procedure Act 2010 is to facilitate the just, efficient, timely and cost-effective resolution of proceedings. That objective was not achieved by the commencement of two separate proceedings concerning the same issues.

3 Bluescope relied on the fact that the notice dated 11 March 2010 given by the Registrar of Titles under s.89A (3) of Transfer of Land Act 1958 was only given after the commencement of the first proceeding. There had been no need for Mr and Mrs Beerens to apply for the issue of the notice at that time. They could have awaited the outcome of the first proceeding.

4 It was not unreasonable for Bluescope to commence the second proceeding following the receipt of the s.89A Notice. It had to take some step following receipt of the Notice. Mrs Beerens needed to be a party to the proceeding and she was not a party to the first proceeding.

5          I accept Bluescope’s submissions. It is entitled to its additional party-party costs caused by the commencement of this proceeding. I see no reason why it should be penalised for not taking steps to amend the first proceedings and join Mrs Beerens to it. Little additional costs have been caused by the issue of the second proceedings, which were adjourned to abide the outcome of the first proceeding.

6          I would expect that if a taxation of costs of this proceeding is required, the Costs Court will take into account the very small amount of court time that this proceeding occupied.

7          The defendants must pay the plaintiff’s party-party costs of this proceeding to be taxed on scale D in default of agreement.

Orders

(A)	The Court declares that the interest of Mr Thomas Beerens in 26 Downes Street, Brighton stands charged in favour of Bluescope Pty Ltd with the payment of the sums awarded by the judgment in County Court proceeding CI-09-01729, which total $436,567.99.
(B)	The defendants pay the plaintiff’s costs of this proceeding on a party and party basis to be taxed on scale D in default of agreement, but such costs are only to include costs additional to those costs incurred in proceeding CI-09-01729.

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