Cam Nominees Pty Ltd v Ashby Mining Ltd (No 2)
[2024] VCC 69
•12 February 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMERCIAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-22-01079
| CAM NOMINEES PTY LTD | Plaintiff |
| v | |
| ASHBY MINING LTD | Defendant |
---
JUDGE: | His Honour Judge Rozen | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | None, on the papers | |
DATE OF JUDGMENT: | 12 February 2024 | |
CASE MAY BE CITED AS: | CAM Nominees Pty Ltd v Ashby Mining Ltd (No 2) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 69 | |
REASONS FOR JUDGMENT
---
Subject:Application to re-open costs order
Catchwords: Costs following plaintiff’s unsuccessful application for summary enforcement – No alternative orders sought within time limit – Orders confirmed – Subsequent application for extension of time to apply for alternative order – No satisfactory reason for delay
Legislation Cited: County Court Civil Procedure Rules 2018
Cases Cited:–
Judgment: Application dismissed
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D. Lorbeer | Lewis Allen Janover |
| For the Defendant | Ms M. Harris | Garland Hawthorn Brahe Lawyers |
HIS HONOUR:
Background
1On 13 September 2023, the Court handed down its reasons for rejecting the plaintiff’s application for summary enforcement of terms of settlement reached with the defendant.[1] I determined that the case was of such complexity that the summary enforcement process was inappropriate. This decision, which deals with the question of who should pay the costs of the failed application, assumes familiarity with those earlier reasons.
[1] [2023] VCC 1628 (‘earlier reasons’).
2At paragraph [72] of the earlier reasons I provisionally ordered the plaintiff to pay the defendant’s costs of the plaintiff’s failed application. This was subject to the parties having two weeks to file written submissions seeking an alternate costs order. The parties were also given liberty to apply to vary that date.
3Neither party submitted within the time allowed that any different order ought be made regarding costs. Nor did either party apply for an extension of the time allowed to make any such submission.
4On 11 October 2023 the parties were informed by the Court that, in those circumstances, the costs order in the defendant’s favour was ‘confirmed’.[2]
[2] Email dated 11 October 2023 from the chambers of His Honour Judge Rozen to the parties.
5On 23 January 2024, the plaintiff filed written submissions with the Court seeking an order extending the date by which it could seek an alternate costs order from 27 September 2023 to 24 January 2024.[3] This was more than 3 months after the parties were informed that the orders were ‘confirmed’. More than 4 months had passed since the earlier reasons were published.
[3] Email dated 23 January 2024 from the Plaintiff’s solicitors to the chambers of His Honour Judge Rozen attaching Plaintiff’s Submissions on Costs of the Plaintiff’s Summary Enforcement Application dated 23 January 2024.
Submissions
6In its submissions in support of the present application, the plaintiff contends that the Orders published on 13 September 2023 have not been ‘perfected’ as they have not been authenticated pursuant to rule 60A.07 of the County Court Civil Procedure Rules 2018. It submits that this provides the Court with a ‘degree of latitude in making a different order from that pronounced’.[4]
[4] Plaintiff’s Submissions on Costs of the Plaintiff’s Summary Enforcement Application dated 23 January 2024, [13].
7The only explanation advanced by the plaintiff for the delay in making the submission and its failure to seek an extension of time is that it changed its barrister.[5]
[5] Ibid, [12].
8As to the substantive change to the provisional costs order, the plaintiff submits that the defendant’s costs of the summary enforcement proceeding should be costs in the cause. This is said to be the ‘usual practice’. The plaintiff contends that its application for summary enforcement was ‘akin to one for summary judgment’. In such cases, where a defendant is granted leave to file a defence, it is common for an order to be made that the costs of the application be costs in the cause.[6]
[6] Ibid, [4].
9The defendant opposes the application. In written submissions dated 30 January 2024, it contends that the plaintiff was given an opportunity to make the submission it now seeks to make. The important principle of finality of litigation stands firmly in the plaintiff’s way.[7] The defendant submits that ‘there is no evidence before the court as to why the plaintiff did not make submissions’ in respect of the orders ‘or seek any reasonable extension of time’.[8] I accept that this is so. A change of barrister is hardly a good reason for a failure to comply with the time limit in the costs orders. The plaintiff has been legally represented throughout the proceeding.
[7] Defendant’s Outline of Submissions dated 30 January 2024.
[8] Ibid, [19].
10Finally the defendant submits that ‘the absence of authenticated order having been issued does not invalidate or provide grounds to seek to set aside [the earlier costs order].[9] The defendant points out that, under rule 59.02(1), an order made by the court shall take effect from the date it is given.
[9] Defendant’s Outline of Submissions dated 30 January 2024, [21].
11The difficulty with this submission is that the costs order was, in terms, provisional.
Consideration
12I accept the general thrust of the defendant’s submissions. Finality in litigation is important. The plaintiff was given ample opportunity to persuade the court to make a different costs order to the one provisionally made in the earlier reasons. It has not made out a case for the court to accede to its present application.
13The plaintiff’s application to re-open the costs order is dismissed. There will be no order for costs in respect of the current application.
---
Certificate
I certify that these 4 pages are a true copy of the ruling of His Honour Judge Rozen delivered on 12 February 2024.
Dated: 12 February 2024
Andrew Morrison
Associate to His Honour Judge Rozen
0