Corporate Sports and Entertainment Pty Ltd v Morris and; Castle Holdings Pty Ltd (No 2)

[2011] VCC 899

IN THE COUNTY COURT OF VICTORIA	Not Restricted
AT MELBOURNE CIVIL DIVISION COMMERCIAL LIST GENERAL DIVISION

Case No. CI-02-05714

CORPORATE SPORTS & ENTERTAINMENT PTY LTD	Plaintiff
v
JANICE MORRIS	First Defendant
and
CASTLE HOLDINGS PTY LTD	Second Defendant

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JUDGE:	HIS HONOUR JUDGE GINNANE
WHERE HELD:	Melbourne
DATE OF HEARING:	8 July 2011
DATE OF JUDGMENT:	8 July 2011 – Revised 12 July 2011
CASE MAY BE CITED AS:	Corporate Sports & Entertainment Pty Ltd v Morris and Castle Holdings Pty Ltd (No 2)
MEDIUM NEUTRAL CITATION:	[2011] VCC 899

JUDGMENT

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Catchwords: COSTS – proceeding commenced in 2002 – plaintiff succeeding on application to amend name but proceeding dismissed for want of prosecution – plaintiff to pay costs of both applications – appropriate for costs to include two counsel including senior counsel: County Court Civil Procedure Rules 2008 Rule 63.17.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J G Pennell	Browne & Co
For the Defendants	Mr M J Biviano	Roger Yelland & Co
HIS HONOUR:

1          There are two matters that remain about costs following the orders I made on 24 June 2011. The terms of those orders were that the name of the plaintiff be amended to “Corporate Sports & Entertainment Pty Ltd” and the title of the proceeding be amended accordingly; second, that the proceeding be dismissed; and thirdly, that the plaintiff’s Summons dated 20 January 2011 and 2 March 2011 and the defendants’ Summons dated 27 July 2010 otherwise be dismissed.

2          The costs issues to be decided relate first to the costs of the Summons of 20 January 2011 and 27 July 2010 and secondly to whether the fees of Senior Counsel, in addition to Junior Counsel, should be permitted.

3 Dealing with the first matter, the determination of orders in respect of costs involves the exercise of a discretion. Rule 63.17 provides that, in the case of a party who amends a pleading or other document by leave, that party shall, unless the Court otherwise orders, pay the costs of and occasioned by the amendment. However, the Court still retains a discretion.

4          Ultimately, as is clear, I have determined that the plaintiff was, in the exercise of the discretion under Rule 36, entitled to an order correcting its name. I do, however, consider that the defendants were entitled to resist the application. The fact that the point was only taken by the defendants very late in the proceeding after some eight years of litigation requires careful consideration for the reasons advanced by Counsel for the plaintiff this morning.

5          However, it is highly likely that the issue about the incorrect naming of the plaintiff would have been raised at some point. If the case had gone to trial without the point being raised and the plaintiff had succeeded, even at the point when execution of judgment was attempted, the issue is likely to have arisen and required an application to the Court to amend the plaintiff’s name.

6          Whenever the point was raised, the defendants were entitled to resist the application and to put arguments in opposition to it. The arguments they did put, in my view, were not valid, but I do not consider them to be frivolous or unarguable. The application of the principles that were discussed in the judgment of 24 June 2011 does require a consideration of the particular circumstances of the case. While a conclusion is reached by the application of those principles, the answer seems obvious, it is not always so obvious at the commencement of such an application, as indeed some of the decisions, referred to in argument, demonstrate. The defendants did not advance any submission that was not arguable. I consider they are entitled to the relevant costs of 15 and half of 16 March 2011, being the days when the summonses were heard.

7          I next consider whether Senior Counsel’s fees should be allowed in addition to Junior Counsel’s fees. I do take into account that this was, at least in part, an interlocutory hearing. However it was a hearing of great significance and has ultimately led to an order that the proceeding be dismissed. Both parties briefed Senior Counsel. Both parties addressed me and assisted the Court through the joint efforts of Senior Counsel and Junior Counsel, with a careful preparation of chronologies, submissions and provision of authorities. I was greatly assisted by the submissions of Counsel on both sides, both Senior Counsel who made the submissions, but obviously also their juniors who had been involved in their preparation.

8          I take into account the importance of the application, the fact that it was a case out of the ordinary, because it had been commenced in 2002 and therefore a very lengthy chronology had to be considered as well as the consequences of steps along the way. There were many affidavits filed in connection with the summonses.

9          In all the circumstances, I do consider, in the exercise of discretion, that it is an appropriate case to allow two counsel, including Senior Counsel.

10        The quantum of the fees claimed are not the subject of dispute and they appear, in the circumstances, to be within the realms of what is reasonable.

11        Accordingly, subject to the amendment of the name of the plaintiff to insert an ampersand in place of the conjunction, I will make the following orders, in addition to the orders I made on 24 June 2011.

(1)	The plaintiff pay the defendants’ costs of and incidental to the plaintiff’s Summons dated 20 January 2011 and the defendants’ Summons dated 27 July 2010, including any reserved costs to be taxed on Scale D unless otherwise agreed by the parties;
(2)	The Court certifies the following items for the defendants’ costs of the Summonses:

(a)	the costs of Senior Counsel for one day of preparation and appearance of one day of hearing on 15 March 2011 and a half-day on 16 March 2011 at the rate of $6,600.00 per day, being a total of $16,500.00;
(b)	the costs of Junior Counsel for one day of preparation and appearance of one day of hearing on 15 March 2011 and a half-day on 16 March 2011 at the rate of $2,500.00 per day with the amount of $300.00 for receiving judgment on 24 June 2011, being $6,550.00;
(c)	the costs of an instructor in Court for the hearing of the Summonses for six hours at $200.00 per day, being $1,200.00; and
(d)	the costs of Junior Counsel for appearance at the hearing of the determination of costs for the proceeding and trial for a total of a half-day, being $1,250.00.

(3) The plaintiff otherwise pay the defendants’ costs of the proceeding, including any reserved costs (excluding any previous costs orders made ordering that the defendants pay the costs of the plaintiff or any previous order that there be no order as to costs) to be taxed on Scale D unless otherwise agreed by the parties.

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