Crowe Horwath (Aust) Pty Ltd v Lawson - [2017] VSC 118

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

EMPLOYMENT AND INDUSTRIAL LIST

S CI 2016 05156

CROWE HORWATH (AUST) PTY LTD (ACN 006 466 351)	Plaintiff
v
RICHARD LAWSON	Defendant

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JUDGE:	Ierodiaconou AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	6 March 2017
DATE OF RULING:	17 March 2017
CASE MAY BE CITED AS:	Crowe Horwath (Aust) Pty Ltd v Lawson
MEDIUM NEUTRAL CITATION:	[2017] VSC 118

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COSTS – Substantive application for interlocutory injunctive relief resolved by consent – Costs reserved - Application by Plaintiff for costs – Supreme Court (General Civil Procedure) Rules r. 63.02, 63.22 – Sections 7(1), 22- 26 Civil Procedure Act 2010 – Overarching purpose and obligations – MPA Motors Pty Ltd and anor v D&L Schmidt Pty Ltd, Ferny Sky Pty Ltd and ors v Capital Finance Australia considered - Whether Plaintiff acted in accordance with overarching obligations in initiating proceedings - Costs denied.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr N A T Harrington	Mills Oakley Lawyers
For the Defendant	Mr A E Galbraith	Minter Ellison Lawyers

HER HONOUR:

Introduction

This ruling concerns costs. The proceeding has resolved save for the question of the costs of an interlocutory hearing on 20 December 2016 (‘the interlocutory hearing’) at which orders were made by consent. The plaintiff seeks costs in respect of the interlocutory hearing.

McDonald J made orders in respect of the interlocutory hearing on 20 December 2016, upon the return of a summons filed by the plaintiff on 16 December 2016 (‘the plaintiff’s summons’). In ‘Other Matters’, the orders recorded the following undertakings.

Upon:
1.The plaintiff, by its counsel, undertaking to abide by an order the Court may make as to damages in case the Court shall hereafter be of opinion that the defendant shall have sustained any, by reason of this order, which the plaintiff ought to pay: and
2.The defendant, by his counsel, undertakes that the defendant, until the trial and determination of this proceeding, or if the proceeding is otherwise resolved, or other order, he will not, in the period to midnight on 24 January 2017:
(a) whether by himself, his servants or agents, provide direct or indirect assistance to, or involve himself in, the financial services business of Anthony Loone & Associates (ALA) located at [address], whether as a paid or unpaid agent, advisor, representative, employee, contractor or in any other professional capacity; and
(b) whether directly or indirectly, by himself, his servants or agents, solicit, entice, direct, encourage or procure any person to engage the services of ALA.

The orders provided, by consent, that the plaintiff’s summons be dismissed, thereby liberty to apply, the proceeding be listed for directions on 6 February 2017, and costs be reserved.

Background

In support of its summons, the plaintiff filed an affidavit sworn by one if its directors, Michael Andrew Wilkins, on 16 December 2016 (‘the Wilkins affidavit’). The evidence in the Wilkins affidavit has not been challenged.

The…

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: [2017] VSC 118
Decision Date: 17 March 2017

CaseChat Overview and Summary

The plaintiff, Crowe Horwath (Aust) Pty Ltd, filed an application for interlocutory injunctive relief which was subsequently resolved by consent. The case was heard in the Supreme Court of Victoria, and the plaintiff sought costs following the resolution. The primary focus of the court was whether the plaintiff had acted in accordance with the overarching obligations under the Civil Procedure Act 2010, specifically in relation to the initiation of proceedings and the pursuit of costs. The court considered relevant sections of the Civil Procedure Act 2010 and Supreme Court rules, along with the principles established in MPA Motors Pty Ltd and anor v D&L Schmidt Pty Ltd and Ferny Sky Pty Ltd and ors v Capital Finance Australia.

The legal issues addressed by the court involved the plaintiff's compliance with the overarching purpose and obligations outlined in the Civil Procedure Act 2010, particularly sections 7(1) and 22-26. The court had to determine if Crowe Horwath (Aust) Pty Ltd had acted appropriately under these provisions when initiating the proceedings and subsequently applying for costs. The overarching purpose, as stated in the Act, requires that parties to civil proceedings act in a manner that is just, quick, and cheap, taking into account the importance of the case, the amount in dispute, and the need for the court to allocate resources efficiently.

The court concluded that Crowe Horwath (Aust) Pty Ltd did not act in accordance with the overarching obligations when initiating the proceedings. The plaintiff failed to demonstrate that it had considered alternative means to achieve its objectives or that it had acted in a manner that was consistent with the principles of just, quick, and cheap resolution of disputes. The court found that the plaintiff's approach was not aligned with the overarching purpose, leading to the denial of the application for costs. The court's decision was influenced by the reasoning in previous cases, which emphasised the need for parties to adhere strictly to the principles of the Civil Procedure Act 2010.

The final orders of the court were that the plaintiff's application for costs was denied. The court held that Crowe Horwath (Aust) Pty Ltd had not fulfilled its obligations under the Civil Procedure Act 2010, and thus, it was not entitled to the costs sought. The decision underscores the importance of parties acting in accordance with the overarching purpose and obligations when initiating and pursuing legal proceedings.

Orders