Dawson 62 Pty Ltd v Tank Securities Corporation Pty Ltd

[2011] VCC 116

IN THE COUNTY COURT OF VICTORIA Revised

(Not) Restricted

AT MELBOURNE
CIVIL DIVISION

COMMERCIAL LIST – GENERAL DIVISION

Case No. CI-10-02523

DAWSON 62 PTY LTD	Plaintiffs
v
TANK SECURITIES CORPORATION PTY	Defendants
LTD & ORS
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JUDGE:	HIS HONOUR JUDGE ANDERSON
WHERE HELD:	Melbourne
DATE OF HEARING:	22 February 2011
DATE OF JUDGMENT:	22 February 2011 (revised 23 February 2011)
CASE MAY BE CITED AS:	Dawson 62 Pty Ltd v Tank Securities Corporation Pty Ltd & Ors
MEDIUM NEUTRAL CITATION:	[2011] VCC 116

REASONS FOR JUDGMENT

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Catchwords:  Practice and procedure – Application by plaintiff to vacate trial date –
Outstanding interlocutory steps by both parties – Costs of the defendants
attending the directions hearing reserved.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr W. Stark	Rotstein Lockwood Reddy
For the First, Third, Fourth	Mr T. J. McLean	Somerville Legal
and Fifth Defendant
For the Second Defendant	No appearance
HIS HONOUR:

1.    The plaintiff has made application for the vacation of the trial date next Monday, 28 February 2011. The basis of the application is that the plaintiff has recently changed solicitors and the previous solicitors had not performed a number of tasks necessary for the preparation for trial next Monday. These included briefing counsel and the preparation of an expert’s report quantifying the cost of making good leased premises after they were vacated by the first defendant.

2.    The actual reason for the change of solicitors has not been expressly stated in the affidavit material filed on behalf of the plaintiff in support of the application. Nevertheless, it appears that the interests of justice require that the trial be adjourned in order that the plaintiff might present its case. The second defendant has consented to the adjournment of the trial. The application was opposed by counsel representing the first, third, fourth and fifth defendants.

3.    An examination of the issues in the case reveals that:

a. behalf of the first defendant that the exercise of an option under the lease was

The plaintiff’s claim for outstanding rent of $150,000 is met by a defence on conditions and, in respect of the other defendants who are guarantors, there are technical defences relied upon to support the view that the guarantee would not have been enforceable by the plaintiff at the time the premises were vacated;

b.

The plaintiff claims the cost of making good the premises after the first defendant vacated, although the plaintiff later carried our extensive renovations to the premises. The plaintiff asserts that this claim is supported by authority, including a decision of the Full Court of the Supreme Court of Victoria;

c.

The set off pleaded by the first, third, fourth and fifth defendants is based upon lost production arising from a breach of the plaintiff’s obligations under the lease to maintain the premises. This pleading is presently inadequately particularised and it appears also that proper discover has not been made of documents which would be required in order to establish the amount claimed by way of set off.

4.    The examination of these issues has led me to the following conclusions:

a.	It is appropriate that the trial be adjourned although it is at the request of the plaintiff who has, on a previous occasion, indicated that it was ready to proceed;
b.	Directions are required to ensure that the real disputes can be determined at trial and that necessary interlocutory steps are completed before trial;
c.	A judicial resolution conference should be held, either in the form of a case conference in open court of a settlement conference on a without prejudice basis.

5.    At the request of counsel for the first, third, fourth and fifth defendants, I have agreed that the judicial resolution conference should not proceed next Monday, being the vacated trial date but, rather, should be deferred for some weeks to allow the parties time to consider the issues in the case and to take some steps towards remedying the presently defective state of the particulars, discovery and the expert material that has been filed.

6.    The first, third, fourth and fifth defendants have sought their costs of the application and hearing today as well as their costs thrown away by reason of the vacation of the trial date. I consider that the costs of those defendants, including the costs of the application to vacate the trial, should be reserved to the trial judge or, if the matter does not proceed to trial and requires further adjudication, until further order.

7.    The trial is to be adjourned upon the application of the plaintiff who, ordinarily, should have the principal responsibility for the carriage of the proceeding. In part the reason for that application (the change of solicitors) remains unexplained, as does the

default by the plaintiff in not having previously prepared the expert’s report which is
the justification for the adjournment.

8.    However, in my judgment, the first, third, fourth and fifth defendants are also in default by not having properly particularised the set off pleaded in the amended defence and for not having made proper discovery of documents which would be necessary to establish the set off at trial. The latter matter has been debated in correspondence with the plaintiff’s solicitors, with the assertion by those defendants that it is a matter for trial whether or not the defendants produce the necessary material to establish their set off.

9. seems to me that the set off is a substantial part of those defendants’ defence and, in

Although there might appear to be some superficial attraction in that argument, it costs thrown away by vacation of the trial date and of the application today should await the determination of the issues at the trial rather than being decided today.

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Certificate

I certify that these 3 pages are a true copy of the reasons for decision of His Honour Judge

Anderson delivered on 22 February 2011 and revised on 23 February 2011.

Dated: 23 February 2011

Hannah Christensen

Associate to His Honour Judge Anderson