Colliers International WA Pty Ltd v Agapitos

[2019] WASC 371

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   COLLIERS INTERNATIONAL WA PTY LTD -v- AGAPITOS [2019] WASC 371

CORAM:   MASTER SANDERSON

HEARD:   15 AUGUST 2019

DELIVERED          :   17 OCTOBER 2019

FILE NO/S:   CIV 2096 of 2019

BETWEEN:   COLLIERS INTERNATIONAL WA PTY LTD

Plaintiff

AND

NICHOLAS AGAPITOS

Defendant

Catchwords:

Costs - Costs on an application for pre-action discovery - Turns on own facts

Legislation:

Nil

Result:

Defendant to pay plaintiff's costs

Category:    B

Representation:

Counsel:

Plaintiff	:	Mr M Bruce
Defendant	:	Mr M Hemery

Solicitors:

Plaintiff	:	Bruce Legal Consultants (Perth)
Defendant	:	Hotchkin Hanly

Case(s) referred to in decision(s):

Nil

MASTER SANDERSON:

1. On 24 June 2019 the plaintiff issued an originating summons seeking pre‑action discovery from the defendant.  As is usual the plaintiff sought orders that it pay the defendant's reasonable costs of giving discovery.  Eventually the parties were able to reach agreement in large measure and on 4 July 2019 I made orders the defendant give discovery and that the plaintiff pay the 'defendant's reasonable costs, including legal costs, of complying' with the discovery orders.  The parties could not agree about who should pay the costs of the application.  The defendant maintained the plaintiff should pay the costs.  The plaintiff said the circumstances of this case were such that the defendant ought pay the costs of the application.  These reasons are concerned solely with that issue of costs. 

2. Essentially it was the plaintiff's argument that the conduct of the defendant and/or his solicitors was such that what should have been a straightforward application leading directly to consent orders was unnecessarily protracted.  I should make it plain that the solicitors who represented the defendant at the hearing of the costs question were not the solicitors having conduct of the matter up until orders for discovery were made.  Nothing in these reasons should be taken as being critical of the defendant's present solicitors.

3. There have been a number of affidavits filed in this matter largely relating to the question of costs.  The first affidavit of relevance is that of Mr Ali Qamar sworn 24 June 2019.  Appearing as attachment AQ14 is a letter from the plaintiff's solicitors to the defendant's then solicitors setting out the basis upon which the plaintiff maintained it was entitled to pre‑action discovery.  Without going into details the plaintiff was for a time the employer of the defendant.  The defendant left the plaintiff's employment and the plaintiff was concerned about post‑employment obligation the defendant had to the plaintiff pursuant to the employment agreement.  Essentially the defendant, on the plaintiff's case, was obliged to return a range of documents in his possession when his employment was terminated.  The plaintiff wanted to know what documents were in possession of the defendant so as to ascertain whether these post‑employment obligations had been breached. 

4. The letter sets out the plaintiff's concerns.  It does so in a series of ten paragraphs which make clear the allegations the plaintiff has against the defendant.  In other words, from the first the defendant must, or at least should, have known with some precision what allegations were made against him.  The letter asked for a response by 1 May 2019.

5. Discussions then took place between the plaintiff's solicitors and the defendant's solicitors.  By this time the defendant had engaged counsel.  On 10 May 2019 discussions took place between the plaintiff's solicitor, the defendant's solicitor and counsel at counsel's chambers.  A number of concerns were raised by counsel about the plaintiff's application.  These concerns were addressed in a letter from the plaintiff's solicitor to the defendant's solicitor written the same day – 10 May 2019.[1]  The letter concludes by requesting a response by 17 May 2019.

   [1] Annexure 'AQ-15' to the affidavit of Ali Qamar sworn 25 June 2019 at page 107.

6. On 17 May 2019 a discussion took place between the parties' solicitors.  On 20 May 2019 the plaintiff's solicitor wrote to the defendant's solicitor confirming the contents of that discussion.[2]  Essentially the defendant was to give discovery by 31 May 2019 with some limitations which are not presently relevant.  What is important about this letter is the fact that on 17 May 2019 agreement was reached that discovery would be given and such discovery would be given by 31 May 2019.  Of course at this point no application had been issued and based upon the agreement it was reasonable to assume that no application would have to be issued.  Also on 20 May 2019 the defendant's solicitor sent an email to the plaintiff's solicitor confirming the agreement and asking for confirmation the plaintiff would cover the defendant's reasonable costs of providing discovery.  On 24 May 2019 the plaintiff's solicitor confirmed the plaintiff would meet the defendant's costs of providing discovery subject to what is generally known as the 'Kelbush carve‑out'.  That is to say, the plaintiff reserved the right to claim any amount paid to the defendant for giving discovery as part of its costs should it be successful in any proceedings subsequently issued.[3]

   [2] Annexure 'AC-15' to the affidavit of Ali Qamar sworn 25 June 2019 at page 109.

   [3] Annexure 'AQ-15' to the affidavit of Ali Qamar sworn 24 June 2019 at pages 110 – 112.

7. There was a second aspect to the email.  The defendant sought to limit the discovery of emails sent from and to a particular email address.  That was unacceptable to the plaintiff and the reasons why it was unacceptable were detailed in the 24 May 2019 letter.

8. This issue of the email address does not appear to have been the subject of further discussion.  The subsequent email chain gives the impression the defendant's solicitor was working on the preparation of an affidavit of discovery.  On 30 May 2019 the plaintiff's solicitor sent an email to the defendant's solicitor asking when discovery might be provided.[4]  No response appears to have been received.  On 17 June 2019 the plaintiff's solicitor wrote to the defendant's solicitor pointing out discovery had not been provided and noting the issue of process had been delayed because of promises made by or on behalf of the defendant.[5]  The plaintiff's solicitor said unless discovery was provided by 20 June 2019 proceedings would be issued.  That email provoked no response and proceedings were subsequently issued.

   [4] Annexure 'AQ-15' to the affidavit of Ali Qamar sworn 24 June 2019 at page 117.

   [5] Annexure 'AQ-15' to the affidavit of Ali Qamar sworn 24 June 2019 at page 120.

9. Having filed the summons the plaintiff's solicitor sent an email on 25 June 2019 asking if the defendant's solicitor had instructions to accept service.  They also suggested the defendant simply consent to the orders sought in the originating summons.  It is worth noting at this stage the originating summons anticipated the defendant paying the plaintiff's costs of the application.  A response was sent on 27 June 2019 accepting service of the originating summons and affidavit in support.  Later that same day, the plaintiff's solicitor sent a further email asking if the defendant intended to oppose the application.  It appears there was no response.  They did not indicate whether the defendant would consent to or oppose the orders sought in the originating summons.  Copies of the relevant documents appear as attachments to the affidavit of Jonelle Di Lena sworn 14 August 2019.  (In fact Ms Di Lena swore two affidavits on 14 August 2019.  The documents I have referred to are attached to the second of these two affidavits.  That affidavit bears the court number 11).

10. Attached to Ms Di Lena's first affidavit is a bundle of email correspondence passing between the parties' solicitors.  It is a little difficult to know what to make of this correspondence.  The first return date of the summons was 4 July 2019.  Prior to that date the plaintiff's solicitor had forwarded to the defendant's solicitor a minute of consent orders which it would appear embodied an agreement reached between the solicitors.  The defendant's solicitor never signed and returned the minute.  On 3 July 2019 the plaintiff's solicitor lodged submissions in support of their application.  The plaintiff's solicitor attended court on 4 July 2019 anticipating the matter would be argued.  It was just prior to the hearing counsel advised the plaintiff's solicitor consent had been reached with the question of costs of the application being reserved.  It was then I made the orders referred to above. 

11. This is a very unhappy saga.  It would seem from the first the defendant conceded discovery should be given.  There is no plausible explanation as to why that was not done back in April or early May.  As I have indicated, from the first the defendant was aware of the basis upon which the plaintiff sought discovery.  During the course of his submissions counsel for the plaintiff made the point that independent of any right to pre‑action discovery, the defendant had a contractual obligation to disclose to the plaintiff what documents he had retained relevant to his employment after that employment was terminated.  That submission strays into the wider question of the nature of the contractual relationship between the plaintiff and the defendant.  But even leaving to one side any issues of law which might arise in relation to the contract this much is clear – the defendant at all times conceded he should give discovery and really in the end the scope of the discovery was not much different to the discovery anticipated by the plaintiff's original correspondence.

12. In all the circumstances I am satisfied the defendant, by his conduct, has forfeited the right to the costs of the application.  The very fact that the application was necessary was a consequence of the defendant's delay and prevarication.  Moreover, after the application was issued and served the defendant's actions in not conceding and agreeing to a consent minute meant it was necessary for the plaintiff's solicitor to prepare for an argument on the first return date.  It was only at the last minute the defendant conceded his position was unmeritorious.

13. The order will be that the defendant pay the costs of this application including the reserved costs, such costs to be taxed if not agreed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

TG

Court Officer

17 OCTOBER 2019