C2C Investments Pty Limited v Commonwealth Bank of Australia (No 3)
[2013] NSWSC 644
•24 May 2013
Supreme Court
New South Wales
Medium Neutral Citation: C2C Investments Pty Limited & Ors v Commonwealth Bank of Australia (No 3) [2013] NSWSC 644 Hearing dates: 24 May 2013 Decision date: 24 May 2013 Jurisdiction: Common Law Before: Slattery J Decision: Proceedings discontinued on terms that the Second and Third Plaintiffs pay the Defendant's costs of the proceedings and do not commence any further proceedings against the Defendant on the same or substantially the same causes of action as are pleaded in these proceedings. Directions made for the parties to file any evidence in relation to the Defendant's motion for an order for a gross sum costs order under Civil Procedure Act 2005 s 98(4)(c).
Catchwords: PROCEDURE - discontinuance on terms - Plaintiffs seek to discontinue the proceedings - Defendant opposes the discontinuance and seeks for the proceedings to be dismissed - whether the Court should order discontinuance on terms.
COSTS - Defendant seeks cost orders against the Plaintiffs - Defendant seeks an order under Civil Procedure Act 2005 s 98(4)(c) any costs payable to be in a specified gross sum instead of assessed costs.Legislation Cited: Civil Procedure Act 2005, Uniform civil Procedure Rules 2003 Category: Interlocutory applications Parties: C2C Investments Pty Limited (First Plaintiff)
C2C Developments Pty Limited (Second Plaintiff)
Geoffrey Anthony Shannon (Third Plaintiff)
Linda Shannon (Fourth Plaintiff)
Commonwealth Bank of Australia (Defendant)Representation: Counsel:
S Lipp (Second and Third Plaintiff)
P. Newton (Defendant)
Solicitors:
Platinum Lawyers (Second and Third Plaintiff)
Gadens Lawyers (Defendant)
File Number(s): 2012/293690
Judgment
These proceedings are back before the Court in relation to the liberty granted to the plaintiffs to amend their statement of claim. This is the Court's third judgment in these proceedings.
In the Court's principal judgment the Court struck out parts of the statement of claim and gave the present plaintiffs leave to replead their statement of claim: C2C Investments v Commonwealth Bank of Australia [2013] NSWSC 256 ("the principal judgment").
In the Court's second judgment the Court granted a partial stay on the existing consent judgment in the Developments proceedings on terms: C2C Investments Pty Ltd v Commonwealth Bank of Australia ( No 2) [2013] NSWSC 571. This third judgment should be read together with the Court's principal judgment and the second judgment. Events, persons and things are referred to in both judgments using the same terminology.
As a result of the Court's earlier judgments the two remaining plaintiffs in these proceedings are Developments and Mr Shannon. On behalf of the plaintiffs Mr Lipp informs the Court this morning that Developments and Mr Shannon wish to discontinue these proceedings. Mr Newton, on behalf of the Bank, informs the Court that the terms imposed by the Court for a continuation of the stay on the remaining consent judgments have not been complied with and that no moneys have been paid to the Bank or paid into Court in accordance with the orders provided for in the second judgment. The Bank opposes the discontinuance and says there should now be a dismissal of the proceedings.
In the event of discontinuance Mr Newton seeks costs on behalf of the Bank. And if such a costs order is made, the Bank seeks assessment of those costs on a lump sum basis.
The law in relation to discontinuance in these circumstances is clear. It is provided for in Uniform Civil Procedure Rule 2005 ("UCPR") r12.1 and in the authorities that consider the discretion arising under that rule. Leave to file a notice of discontinuance or to discontinue the proceedings against a defendant can only occur with the consent of that defendant, or with the leave of the Court. Here the Bank has not consented to the discontinuance, so the Court's leave is required. The exercise of the Court's discretion involves an overriding consideration that the grant of any leave to discontinue not occasion any injustice to the other party. That would usually mean that the costs order would be made in favour of the non-discontinuing party: ScopeData Systems Pty Ltd v Agostini Jarrett Pty Ltd [2007] NSWSC 971 and Australiawide Airlines Limited v Aspirion Pty Ltd [2006] NSWCA 365. That is the case here in my view. No reason is shown why, after several contested hearings, in relation to procedural matters that discontinuance should not now be upon terms that the defendant Bank's costs be paid, and I will so order. But I will also impose another term of the discontinuance.
Although the Bank seeks a dismissal of the proceedings a more appropriate course in these circumstances is, as discontinuance is being offered, to impose a term upon the discontinuance that Developments and Mr Shannon not commence further proceedings against the Bank on the same or substantially the same causes of action as are pleaded in the discontinued proceedings. It seems to me that on the balance of justice in this case, and informed by matters I will deal with in the next paragraph, that is the appropriate order.
The circumstances of this case indicate that a term banning the commencement of further proceedings is appropriate for the following reasons. After a statement of claim was filed in September last year the defendant moved to strike that claim out and a detailed contested hearing on the statement of claim took place in March. Developments and Mr Shannon were given leave to replead, which leave they have now not taken up. Moreover, this case is the last of several rounds of litigation, the first round of which resulted in the consent judgments which were sought to be stayed. But for the plaintiffs' present position not to go further with these proceedings, the plaintiffs would have had every opportunity to finalise their claims against the Bank. The leave to amend granted to the plaintiffs in the principal judgment would have continued to give them, on terms, such opportunities as they wished, to litigate against the Bank.
In these circumstances, it seems to me that now Developments and Mr Shannon have decided to discontinue, then that discontinuance should be upon terms that no further proceedings be brought.
The last question relates to the assessment of the costs, which I have ordered to be paid. The Bank seeks an order under Uniform Civil Procedure Act 2005 ("UCP Act") s 98(4)(c) that a specified gross sum be paid instead of assessed costs. Such an order can be made at any time "before costs are referred for assessment". I have made a costs order now. The costs have not yet been referred for assessment. So the provision applies. Section 98(4)(c) is a well-known mechanism for ensuring rapid determination of costs in circumstances where the party with the benefit of the costs order may find itself spending money on the assessment, which expenditure is at risk of not being recovered: Harrison v Schipp (2002) 54 NSWLR 738. But such an order cannot be made immediately, because the affidavit as to the Bank's costs has only just been served.
The Bank served its evidence to support a lump sum costs orders quickly yesterday, in response to yesterday's information from Developments and Mr Shannon that they wished to discontinue the proceedings. But it is now only fair to give Developments and Mr Shannon an opportunity to consider whether or not they wish to contest such an order. Indeed, they may not ultimately wish to offer a contest on such an order, as it may save them time, costs and energy as well.
On a determination under UCP Act s 98(4)(c) the Court can take, as the authorities require, a broad brush impressionistic view of the costs picture Hadid v Lenfest Communications Inc [2000] FCA 628. But Developments and Mr Shannon should have an opportunity: (1) to argue that such an order should not be made, if that is what they wish; and, (2) if such order is to be made, to argue against the quantum of lump sum costs, which the Bank seeks against them.
Thus the Court's orders and directions are as follows:
(1) Grant leave to the plaintiffs to discontinue these proceedings on terms that: (a) the plaintiffs pay the defendant's costs; and (b) that the plaintiffs may not commence further proceedings against the defendant on the same or substantially the same causes of action as are pleaded in these proceedings.
(2) Direct the Bank to file any further evidence in support of its motion for a lump sum costs order under UCP Act s 98(4)(c) by 4pm Monday 27 May 2013.
(3) Developments and Mr Shannon have liberty to file any evidence upon which they wish to rely in response to the Bank's motion by Friday 31 May 2013.
(4) Direct the parties to file such submissions as they are advised on the motion of no more than three pages by 5pm on Monday 3 June 2013.
(5) List the Defendant's motion under UCP Act s 98(4)(c) for hearing for no more than half an hour at 9.30am on Thursday 6 June 2013.
oOo
Decision last updated: 27 May 2013
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