| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST
S ECI 2018 02498
| DEFINITY CLINIC HOLDINGS PTY LTD (ACN 621 388 298) ATF DEFINITY CLINIC HOLDINGS TRUST | Plaintiff |
| v | |
| A.M.D RIFAT HOLDINGS PTY LTD (ACN 106 065 516) | Defendant |
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JUDGE: | MOORE J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | Written submissions filed on 15 June 2021 |
DATE OF RULING: | 28 June 2021 |
CASE MAY BE CITED AS: | Definity Clinic v AMD Rifat (No 2) |
MEDIUM NEUTRAL CITATION: | [2021] VSC 378 |
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COSTS – Contract litigation – Whether costs should follow the event – Costs of claim and counterclaim dealt with together – Where plaintiff raised irrelevant matters at trial – Where late abandonment of issues and litigation unnecessarily prolonged – Where matter should properly have commenced in County Court – Where Calderbank offer not unreasonably refused by defendant – Defendant pay pre-trial costs of plaintiff on standard basis – Defendant pay 60% of costs of plaintiff on standard basis from date of trial onwards – Interest awarded at statutory maximum from date of demand for payment – Supreme Court Act 1986, ss 24, 58(1) – Penalty Interest Rates Act 1983, s 2 – Milne v A-G (Tas) (1956) 95 CLR 460, applied – Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No. 2) (2005) 13 VR 435, applied – Lollis v Loulatzis (No 2) [2008] VSC 35, applied.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D F McAloon | DW Fox Tucker Lawyers |
| For the Defendant | Mr T P Mitchell | Mills Oakley |
HIS HONOUR:
I delivered judgment in this proceeding on 1 June 2021.[1] This ruling concerns the final orders to be made to give effect to my judgment, and the costs of the proceeding.
[1]Definity Clinic v AMD Rifat [2021] VSC 325 (the judgment). The abbreviations used in the judgment are also used in this judgment.
The key issue in the proceeding was the determination of the proper construction of a clause of a contract for the sale and purchase of a property.[2] The clause made the contract conditional upon the vendor, AMD, obtaining ‘a medical permit for the premises for two (2) practioners [sic].’ Definity paid a $135,000 deposit after entering into the contract. Just over a year later, after the local council issued a permit that Definity alleged was not suitable for its purposes, Definity commenced this proceeding and sought the repayment of its deposit.
[2]‘Special condition 3.1’
At the commencement of the trial, the parties were agreed that there were seven issues for determination. Two of these issues were not pressed by Definity in its closing submissions. Because I upheld the construction of the clause advanced by Definity, I answered Issue 1 in the negative and the remaining questions did not arise for determination.[3] In the result, Definity is entitled to recover the deposit that it paid under the contract and AMD’s counterclaim fails.[4]
[3]See the issues for determination set out in
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- Case
- [2021] VSC 378
- Decision Date
CaseChat Overview and Summary
The legal issues revolved around the appropriate allocation of costs in light of the plaintiff's introduction of irrelevant matters and the late abandonment of issues, which unnecessarily extended the litigation. The court had to determine if the plaintiff's decision to raise irrelevant matters and delay the abandonment of issues warranted a costs penalty. Another significant point was whether the matter should have been commenced in the County Court, as it might have been more suitable given the nature and complexity of the case. Furthermore, the court evaluated the defendant's refusal of a Calderbank offer, determining whether it was unreasonable.
The court held that the plaintiff's introduction of irrelevant matters and the unnecessary prolongation of the litigation justified awarding costs to the defendant. The court ruled that the matter should have been filed in the County Court due to its nature and complexity. It found that the defendant's refusal of the Calderbank offer was not unreasonable. Consequently, the court ordered the defendant to pay the plaintiff's pre-trial costs on a standard basis and 60% of the costs from the date of the trial onwards, also on a standard basis. Additionally, interest was awarded at the statutory maximum rate from the date of demand for payment. This decision was in line with relevant statutes and precedents, including the Supreme Court Act 1986, the Penalty Interest Rates Act 1983, and cases such as Milne v A-G (Tas), Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority, and Lollis v Loulatzis.
The final orders of the court were that AMD Rifat was to pay Definity Clinic's pre-trial costs on a standard basis and 60% of the costs from the date of the trial onwards, also on a standard basis. Interest was to be paid at the statutory maximum rate from the date of demand for payment. These orders reflected the court's assessment of the plaintiff's conduct during the litigation and the overall appropriateness of the case's venue.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Ratio Decidendi
Legal Principle Established
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