| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT ARBITRATION LIST
No 4655 of 2011
| CHRISTOPHER ANTONY DALE | Plaintiff |
| V | |
| CLAYTON UTZ (a firm) | Defendant |
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JUDGE: | HOLLINGWORTH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 August 2013 | |
DATE OF JUDGMENT: | 22 November 2013 | |
CASE MAY BE CITED AS: | Dale v Clayton Utz (No 3) | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 593 | |
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PRACTICE & PROCEDURE – Costs – Interlocutory application to restrain party from retaining lawyer – Application successful – Whether costs should be ordered in favour of successful applicant – If so, whether there should be any exceptions to the costs order – Whether costs should be taxed immediately – Costs ordered to be paid without exception and taxed immediately – Supreme Court (General Civil Procedure) Rules 2005 rr 63.20, 63.20.1, 63.22 and 63.90.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr I Martindale SC | O’Donnell Salzano Lawyers |
| For the Defendant | Mr P Riordan SC Mr N De Young | Minter Ellison |
HER HONOUR:
Introduction
Christopher Dale was, for many years, a partner in the solicitors’ firm of Clayton Utz. In October 2005, Clayton Utz terminated Mr Dale’s partnership. In September 2011, Mr Dale issued this proceeding, in which he claims that, in deciding to expel him, his former partners acted unlawfully and in breach of the partnership agreement.
By paragraph 1 of a summons dated 14 February 2012, Mr Dale sought an order restraining Clayton Utz from continuing to retain Allan Myers QC as their counsel in this proceeding.[1] That application had a rather complex and protracted path to determination.
[1]Paragraph 2 of the summons seeks an order striking out large parts of the defence, on various grounds. The strike out application has not been pursued before me.
After Randall As J had determined a number of disputes about subpoenas, and the admissibility of the parties’ affidavits, the injunction application was referred to me for hearing.
A preliminary issue arose as to whether Clayton Utz should be permitted to cross-examine Mr Dale during the hearing of the injunction application. On 29 November 2012, I granted limited leave to cross-examine Mr Dale.[2]
[2]Dale v Clayton Utz [2012] VSC 577 (“the first reasons”).
After hearing the substantive application in late January 2013, on 26 March 2013 I granted an injunction to restrain Clayton Utz from retaining Mr Myers in this proceeding.[3]
[3]Dale v Clayton Utz (No 2) [2013] VSC 54 (“the second reasons”).
There are now the following disputes about the costs of the injunction application:
(a) Mr Dale seeks an order that Clayton Utz pay his costs of the application, including reserved costs;
(b) Mr Dale seeks an order that those costs be taxed immediately;
(c) Clayton Utz says that the costs of the application should be costs in the proceeding;
(d) Alternatively, Clayton Utz says that if the court is minded to make a costs order in favour of Mr Dale,…
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- Case
- [2013] VSC 593
- Decision Date
CaseChat Overview and Summary
The court considered the relevant provisions of the Supreme Court (General Civil Procedure) Rules 2005 and held that the successful applicant was entitled to costs. The court noted that the Rules permitted the awarding of costs to the successful party in such applications and did not provide for any exceptions. The court further found that the costs should be taxed immediately, as provided for in the Rules. The court took into account the importance of ensuring that legal costs are not unreasonably withheld and that the party who benefits from the outcome should bear the costs.
The court ordered that the costs of the application be paid by Clayton Utz to Dale without any exception and that the costs be taxed immediately. This decision reinforces the principle that the successful party in an interlocutory application is entitled to costs and that these costs should be determined and paid promptly, in accordance with the relevant provisions of the Supreme Court (General Civil Procedure) Rules 2005.
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