Glover v Clark

[2009] VCC 764

IN THE COUNTY COURT OF VICTORIA Revised

(Not) Restricted

AT WANGARATTA

CIVIL DIVISION

Case No. CI-08-04343

NICHOLAS GLOVER and ORS	Plaintiff
v.
DAVID JOHN CLARK and ORS	Defendants

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JUDGE:	His Honour Judge Anderson
WHERE HELD:	Wodonga
DATE OF HEARING:	29 June 2009
DATE OF JUDGMENT:	29 June 2009
CASE MAY BE CITED AS:	Glover & Ors v. Clark & Ors
MEDIUM NEUTRAL CITATION:	[2009] VCC 0764

REASONS FOR JUDGMENT

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Catchwords:  Costs – Indemnity costs – Defendants’ conduct during the proceeding –
Plaintiffs’ offer of compromise bettered.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr J. L. Smith	Nevin Lenne & Gross
For the Defendants	Mr D.J. Clark in person
HIS HONOUR:

1           In this matter it is appropriate, in my view, to depart from the normal order as to costs and to allow the successful plaintiffs indemnity costs for the proceeding since the case conference on 6 February 2009. In my reasons for judgment, I have made comment upon the conduct of the defendants in relation to the making of representations which induced the plaintiffs to purchase the business at Benalla. It is, however, their conduct as litigants which have led me to make the orders for costs I have proposed.

2           A case conference was conducted in this matter on 6 February 2009 at Wangaratta. The case conference related, not just to this proceeding, but to two other related proceedings. At the case conference, the defendants were legally represented and the position adopted during the discussion of the issues in open court was in line with the pleaded defences, which included the propositions that at all relevant times, the plaintiffs knew that the shops at Wangaratta and Benalla stocked standard chicken and that no representations had been made that products sold from the shops were solely free range and chemical free chicken.

3           The defendants’ solicitors withdrew in April 2009 and in May 2009, shortly before the trial, the defendants purported to alter their position. At the trial, it was necessary, however, for the plaintiffs to establish their case because there were no effective admissions in relation to the question of liability. Proof of matters was also made more difficult because of the failure by the defendants to discover documents they were specifically ordered to discover prior to trial, being documents which evidenced the supply of chicken to the Wangaratta shop.

4           An offer of compromise was served on the defendants’ solicitors on 7 April 2009, offering to compromise the proceeding on the basis that the defendants pay the plaintiffs the sum of $60,000, together with costs to be taxed on Scale D. The orders I have made in the proceeding have included the dismissal of the second plaintiff’s claim and the dismissal of claims against the third defendant. In the circumstances, it is probably inappropriate to regard the offer served on 7 April 2009 as an effective offer for the purpose of the Rules. Nevertheless it is appropriate, in my view, to take the offer into account in determining the order for costs, although, even in the absence of the offer, I consider that the order I have proposed would have been appropriate.

5           I have explained in my reasons for judgment why the second plaintiff’s claim should be dismissed and the claims against the third defendant should also be dismissed. Notwithstanding those orders, it is apparent that by the offer, the Glover interests

made it clear that in the circumstances of this case they were prepared to accept
$60,000 plus party party costs. The Clark interests were not prepared to settle on that
basis and, in my view, this is a matter which reinforces the appropriateness of the
costs order which I have made.

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Certificate

I certify that these 2 pages are a true copy of the reasons for decision of His Honour Judge

Anderson delivered on 29 June 2009.

Dated: 29 June 2009

Caroline Dawes

Associate to His Honour Judge Anderson