Clarendon City Developments Pty Ltd v Preston Rowe Patterson Vic Pty Ltd
[2005] VSC 480
•30 November 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
COMMERCIAL LIST
No. 8976 of 2003
F5648
| CLARENDON CITY DEVELOPMENTS PTY LTD (ACN 100 441 736) | Plaintiff |
| v | |
| PRESTON ROWE PATTERSON VIC PTY LTD (ACN 006 110 283) and CRAIG VELJKOVIC | Defendants |
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JUDGE: | WHELAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 November 2005 | |
DATE OF RULING: | 30 November 2005 | |
CASE MAY BE CITED AS: | Clarendon City Developments v Preston Rowe Patterson | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 480 | |
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PRACTICE AND PROCEDURE – Application to dismiss proceeding – Rule 63.03(3)(a) of the Supreme Court (General Civil Procedure) Rules 1996 – Plaintiff failed to pay interlocutory costs orders – Exceptional circumstances – Proceeding dismissed.
Valimi Pty Ltd v Maniotis [2001] VSC 157, followed.
Gao v Zhang [2005] VSC 197, followed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | The director of the plaintiff, Mr Burlock, appeared in person | |
| For the Defendants | Mr P Cawthorn | Phillips Fox |
HIS HONOUR:
This is an application under Rule 63.03(3)(a) of the Supreme Court (General Civil Procedure) Rules 1996 that the proceeding be dismissed as a result of the plaintiff’s failure to pay a number of costs orders. The costs orders in question were respectively made on 18 June 2004, 6 August 2004, 24 September 2004 and 15 October 2004. The costs were taxed on 24 October 2005 at the sum of $8,567.40. At the time the costs were taxed, the matter had already been set down for trial on 22 November 2005.
The matter was set down for trial by an order of 11 February 2005 with the usual directions as to court books and witness statements.
I previously gave a ruling in this matter on 14 November 2005. An affidavit has been sworn by Mr Clive Madder, the solicitor for the defendants, which relevantly sets out the history of the proceeding.
Mr Cawthorn of counsel, on behalf of the defendants, has referred me to two decisions concerning Rule 63.03: Valimi Pty Ltd v Maniotis,[1] a decision of Bongiorno J of 24 May 2001, and Gao v Zhang,[2] a decision of Hollingworth J of 24 May 2005.
[1][2001] VSC 157.
[2][2005] VSC 197.
Each of those decisions suggests that it would only be in exceptional circumstances that a case would be dismissed rather than stayed for a failure to pay interlocutory costs orders.
It seems to me that there are exceptional circumstances in this case and that this proceeding should be dismissed now.
The exceptional circumstances appear to me to be the following.
First, the matter was originally fixed for trial on 22 November 2005. After an application by the plaintiff seeking an adjournment and that Dodds-Streeton J should disqualify herself, I re-fixed the matter for 29 November 2005. It is fair to say, in my view, that the plaintiff has since then demonstrated an anxiety that the matter should not proceed on 29 November 2005 or any time soon. Mr Burlock, the plaintiff’s sole director, who appeared before me today, made it clear that the plaintiff will not proceed tomorrow. If an adjournment application, which Mr Burlock foreshadows will be made tomorrow, is unsuccessful, Mr Burlock will, he says, “withdraw the case”.
Secondly, the plaintiff has defaulted not only on the costs orders but on a number of other orders as well, including the trial directions ordered by Dodds-Streeton J in February 2005.
Thirdly, on 11 and 14 November 2005, I heard the plaintiff’s then solicitor, Mr Sanna, applying for orders, in effect, that the trial should not be heard this year. Mr Burlock today has foreshadowed a very similar application which he says will be made tomorrow. The application Mr Burlock says will be made tomorrow is very similar, if not identical, to the application which I did not accede to on 11 and 14 November.
Fourthly, it is, I think, obvious that the plaintiff has no intention of proceeding to trial either tomorrow or at any time in the near future. There are no solicitors on the record for the plaintiff, and the position of Mr Sanna, who was the plaintiff’s solicitor, and Mr Levine of counsel, who appeared on the application to vacate the previous self-executing order which I made, is uncertain.
Fifthly, notwithstanding that the matter of the outstanding costs has been raised on a number of occasions on and since 11 November 2005, and that a self-executing order has been made and vacated concerning those costs, the costs have still not been paid, and, very late in the hearing there had never been any clear indication given by the plaintiff that it intended to pay at any particular time. Mr Burlock has indicated this afternoon that the plaintiff cannot pay today or tomorrow, but will pay shortly once a payment, which he says has been received, and another payment which he expects, are cleared. The fact remains, however, that the costs have been outstanding for a considerable time. The orders under which they are due are very old. The matter has been canvassed repeatedly over the last two weeks, yet the costs are still not paid and will not be paid tomorrow when the matter is listed for the trial to commence.
Sixthly, the entire issue was canvassed at length yesterday when Mr Levine of counsel appeared for the plaintiff. At his urging I vacated a self-executing order I had previously made. I directed the defendants to make any further application under Rule 63.03 of the Supreme Court (General Civil Procedure) Rules 1996 this afternoon at 3.30 pm by summons. They applied by summons. The summons and a supporting affidavit, which does little more than set out what one could glean from the file in any event, was served on Mr Sanna at Mr Burlock’s expressed request. Mr Burlock has appeared today. He has told me that Mr Sanna and Mr Levine are not available this afternoon. It was, I think, fairly obvious that I was endeavouring to give the plaintiff one last chance to pay what is, in the context, a fairly modest costs liability before finally bringing this case to an end and relieving the defendants of the burden of these proceedings.
Finally, if I were to stay the proceeding rather than dismiss it, or if I were to give the plaintiff any more indulgence, I would simply be giving the plaintiff, in effect, the adjournment which it has been seeking since at least 11 November and for which, in my view, there are no proper grounds. This would be unjust to the defendants.
In the circumstances the proceeding must be dismissed under Rule 63.03(3)(a) and I will make an order to that effect.
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