Circuit Finance Pty Ltd v Gardner - [2006] VSC 70

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 7871 of 2003

CIRCUIT FINANCE PTY LTD	Plaintiff
and
HELEN RAE GARDNER	Defendant

and

GEOFFREY JULIAN HERCULES and
KEITH ALAN HERCULES Third Parties

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JUDGE:	Hollingworth J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 and 28 February 2006
DATE OF RULING:	28 February 2006
CASE MAY BE CITED AS:	Circuit Finance v Gardner
MEDIUM NEUTRAL CITATION:	[2006] VSC 70

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Practice and procedure – orders – application to amend authenticated orders under rule 36.07 – errors of a trifling nature – delay in making application to amend – steps taken by other side in reliance on authenticated orders – application refused

Practice and procedure – costs – unpaid costs – application to strike out defence to third party claim under rule 63.03(3) – application dismissed – self-executing order made to strike out defence if costs not paid within 48 hours

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	No appearance
For the Defendant	Mr A T Strahan	Taylor Splatt & Partners
For the First Third Party For the Second Third Party	No appearance Mr P Cosgrave S.C.	Keith Hercules Solicitors

HER HONOUR:

On 27 and 28 February 2006, I heard interlocutory applications brought on five separate summonses and one notice of appeal in this proceeding, and pronounced orders in respect of each of those applications. I gave oral reasons for decision in the course of the hearing in relation to all matters except the following:

(a) A summons dated 22 December 2005, issued by the second named third party, Keith Hercules, in relation to certain costs orders;

(b) An amended summons dated 2 February 2006, issued by the defendant, Mrs Gardner, seeking to have Mr Hercules’ defence and counterclaim struck out or stayed pursuant to rule 63.03(3).

I indicated that I would provide brief written reasons in relation to those two summonses.

The proceeding

On 13 November 2002, the plaintiff (“Circuit”) filed a complaint in the Magistrate’s Court against the defendant, Mrs Gardner. Circuit claimed the sum of approximately $20,000 owing in connection with the lease by Mrs Gardner of a racehorse called Mountain Princess. Mrs Gardner filed a third party notice, claiming a right to indemnification by Geoffrey Hercules and his brother, Keith Hercules, pursuant to a written indemnity. Geoffrey Hercules is an undischarged bankrupt, so the third party claim is only proceeding against Keith Hercules.

Keith Hercules filed a counterclaim seeking $500,000 in damages flowing from an alleged conspiracy between Mrs Gardner and Geoffrey Hercules to deprive him of Mountain Princess and other racehorses allegedly owned by him. On the application of Keith Hercules, the entire proceeding was transferred to this court. Subsequently, in December 2003, the Chief Justice remitted to the Magistrates’ Court the proceeding between Circuit and Mrs Gardner, leaving the third party claim and counterclaim in this court. Circuit and Mrs Gardner have settled their dispute.

The costs summons

On 27 October 2005, the Taxing Master taxed costs which had been…

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: [2006] VSC 70
Decision Date: 28 February 2006

CaseChat Overview and Summary

Circuit Finance Pty Ltd brought an application to the Supreme Court of New South Wales against Gardner regarding several issues, including an application to amend authenticated orders and a claim for unpaid costs. The application to amend sought to correct minor errors in authenticated orders, while the claim for unpaid costs was related to a third party claim. The court was tasked with determining whether the application to amend should be allowed, despite the delay and steps taken by the other party in reliance on the authenticated orders. Additionally, the court needed to decide whether the defence to the claim for unpaid costs should be struck out if the costs were not paid within 48 hours.

The court considered the application to amend the authenticated orders under rule 36.07 of the Supreme Court Rules. It found that while the errors were of a trifling nature, the delay in making the application and the steps taken by the other party in reliance on the authenticated orders weighed against allowing the amendment. Consequently, the application to amend was refused. Regarding the claim for unpaid costs, the court dismissed the application to strike out the defence under rule 63.03(3) of the Supreme Court Rules. Instead, it made a self-executing order that the defence would be struck out if the costs were not paid within 48 hours.

In summary, the court denied the application to amend authenticated orders due to the delay and reliance by the other party. The court also dismissed the application to strike out the defence to the claim for unpaid costs but made a self-executing order that the defence would be struck out if the costs were not paid within 48 hours. These decisions reflect the importance of timely applications and the consequences of relying on authenticated orders in legal proceedings.

Orders