Direct One Management Pty Ltd v Nafpaktos Pty Ltd (No 2)

[2010] VCC 540

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION

COMMERCIAL – GENERAL DIVISION

Case No. CI-08-03339

DIRECT ONE MANAGEMENT PTY LTD	Plaintiff
ACN 106 212 908
v
NAFPAKTOS PTY LTD	Defendant
ACN 088 127 084

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JUDGE:	HIS HONOUR JUDGE GINNANE
WHERE HELD:	Melbourne
DATE OF HEARING:	Written submissions – last submission received 11 May 2010
DATE OF JUDGMENT:	3 June 2010
CASE MAY BE CITED AS:	Direct One Management Pty Ltd v Nafpaktos Pty Ltd (No 2)
MEDIUM NEUTRAL CITATION:	[2010] VCC 0540

REASONS FOR JUDGMENT

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Catchwords: PRACTICE AND PROCEDURE – Costs – Interpretation of order dismissing application to amend statement of Claim to add further defendants and ordering plaintiff to pay costs of the application – whether costs of earlier hearing included in order – power of Court to amend order.

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Counsel Solicitors

For the Plaintiff	No appearance	Alliance Legal
For the Defendant	No appearance	Gary Prince
HIS HONOUR:

1          On 15 March 2010, I delivered judgment dismissing an application by the plaintiff to deliver a further amended statement of claim and to join further defendants as parties. This judgment followed a hearing on 26 February 2010.

2          I ordered that the plaintiff pay the defendant’s costs of the application.

3          A dispute has arisen as to whether that order as to costs includes the costs of the summons dated 16 September 2009, which was before his Honour Judge O’Neill on 16 September 2009. The summons sought various orders, including leave to join additional defendants and to file and serve an amended writ and statement of claim. His Honour made a number of directions, including for the delivery of a proposed amended statement of claim and reserved costs.

4           The dispute about the meaning of my order came before his Honour Judge Anderson in the Directions List on 29 April 2010, whereupon his Honour referred the issue to me to be determined “on the papers” unless a party requested that there be a hearing, and I considered that a hearing was necessary, having regard to the likely additional costs it would entail. His Honour gave directions providing in effect for the filing and exchange of written submissions. No request for a hearing was received and I do not consider that one is necessary. I have considered the written submissions that have been filed, which included submissions about the Court’s power to amend orders.

5          The matters before me on 26 February 2010 were for leave to amend the statement of claim and to join additional parties as defendants. I so described the application in paragraph 1 of my Reasons for Judgment and in paragraph 63, the concluding paragraph, stated:

“I therefore dismiss the applications to deliver the proposed amended

statement of claim and to join further defendants as parties.”

6          I had heard and refused a similar application on 8 February 2010 and awarded costs of that hearing against the plaintiff, but in effect gave leave for a further application to be made based on a further proposed pleading.

7           I did not on 26 February 2010 consider, or determine, any other relief sought in the plaintiff’s summons of 16 September 2009.

8          The defendant submits:

“The orders provide that the plaintiff pay the defendant’s costs of the application. The relevant application was made by summons dated 16 September 2009 and made returnable on 24 September 2009.”

9          I do not accept this submission and consider that there is no basis for it, as the hearing before me on 26 February 2010 raised only the matters to which I referred in my judgement, namely to amend the statement of claim and join additional defendants.

10        However, as a dispute about the meaning of my order has arisen, I propose to follow the course that the Court of Appeal took in St George Bank Ltd v Quinerts Pty Ltd (No 2)[1], and amend my Order pursuant to my inherent jurisdiction to clear up any ambiguity or uncertainty that is said to arise and thus put the matter beyond doubt.

[1] [2010] VSCA 68.

11        I therefore order that my Order of 15 March 2010 be amended by deleting paragraph 2 and substituting in lieu thereof the following:

(2) That the plaintiff pay the defendant’s costs of the applications to deliver a further amended statement of claim and join additional parties as defendants, which were heard by his Honour Judge Ginnane on 26 February 2010.

12        Paragraphs 1 and 2 of the Order as so amended will now read:

(1)	The applications to deliver a further amended statement of claim and to join additional defendants are dismissed.
(2)	The plaintiff is to pay the defendant’s costs of the applications to deliver a further amended statement of claim and join additional defendants, which were heard by his Honour Judge Ginnane on 26 February 2010.

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