Gracon Group Pty Ltd v Xcelled Plant Hire and Earth Moving Pty Ltd
[2024] VSC 492
•21 August 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
S ECI 2022 04107
| GRACON GROUP PTY LTD (ACN 635 616 625) ATF THE GRACON GROUP UNIT TRUST (and others according to the Schedule) | Plaintiffs |
| v | |
| XCELLED PLANT HIRE AND EARTH MOVING PTY LTD (ACN 613 539 601) (and others according to the Schedule) | Defendants |
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JUDGE: | COSGRAVE J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | On the papers |
DATE OF JUDGMENT: | 21 August 2024 |
CASE MAY BE CITED AS: | Gracon Group Pty Ltd & Ors v Xcelled Plant Hire and Earth Moving Pty Ltd & Ors |
MEDIUM NEUTRAL CITATION: | [2024] VSC 492 |
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Catchwords: PRACTICE AND PROCEDURE – Timetabling orders largely agreed – Parties dispute further order for mediation – Two prior unsuccessful mediations – Order for mediation best gives effect to the overarching purpose of the Civil Procedure Act 2010 (Vic).
Legislation Cited: Civil Procedure Act 2010 (Vic).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr J Evans KC | Madgwicks Lawyers |
| Ms B Slocum | ||
| For the Defendants | Mr S Stuckey KC | Zervos Lawyers |
| Ms C Middleton |
HIS HONOUR:
Background
This proceeding was listed for directions on 28 June 2024. This was also the return date for the defendants’ summons filed 11 June 2024. The Court heard and determined the summons on 28 June 2024 but at that time, the parties were not in a position to propose detailed pre-trial directions for the Court’s consideration. Accordingly, the Court listed the proceeding for a directions hearing on 12 July 2024 to address a scenario under which the parties were unable to agree upon appropriate pre-trial orders.
Parties’ Positions
It appears that the parties, subject to two provisos, have reached agreement on the pre-trial procedural orders to be made in this proceeding.
The first proviso relates to the issue of mediation. The defendants seek to have a mediation whereas the plaintiffs resist this suggestion. I understand that there have already been two mediations in the proceeding and each has been unsuccessful. The plaintiffs do not wish to attend a third mediation. They contend that they should not have to incur the costs of a further mediation and they do not consider that conducting another mediation will facilitate a resolution of the dispute.
For their part, the defendants consider there is utility in a third mediation and that such a matter can be incorporated into the pre-trial timetable without causing any unnecessary delay in the hearing of the trial. The estimated trial duration is 10 days. The defendants contend that substantial costs will be incurred not only in preparing for the trial but also in conducting the trial. They argued that it would be consistent with the objectives of the Civil Procedure Act 2010 (Vic) (‘CPA’) to require the parties to make all reasonable attempts to settle the matter, thereby saving the parties substantial costs and also releasing the Court’s resources to deal with other contested proceedings.
The defendants accept that there have already been two unsuccessful mediations. However, they contend that circumstances now are materially different and a third mediation is warranted. They say that the first mediation was held on 12 December 2022 at a time when the litigation was only in its early stages and the various issues to be determined had not been sufficiently crystallised. The second mediation was held on 21 November 2023. When this date was chosen, the parties expected that they would have been in possession of a joint expert report addressing important matters relevant to the issues in dispute. The defendants allege that a version of the expert report was provided to the parties only the day before the mediation and an amended version of the report was provided on the day of the mediation. In short, the defendants contend that the second mediation was held at a time when the parties had enjoyed insufficient opportunity to engage with the detail of the joint expert report.
The plaintiffs accept that the parties may be better placed to resolve the proceeding given that they now both have the recent joint expert report. However, while the plaintiffs are willing to continue informal commercial discussions to resolve the issues in dispute between the parties, they wish to do so only in writing and without being required to attend a mediation.
The second proviso concerns a new proceeding which the plaintiffs’ solicitor has foreshadowed. In a letter dated 5 July 2024 from the plaintiffs’ solicitors to the defendants’ solicitor, Ms McNicholas said that the plaintiffs will be shortly issuing a new proceeding so any offers of settlement which the defendant made ‘will need to encapsulate the matters the subject of that proceeding’. The defendants’ solicitors sought details about the ‘new proceeding’ as a matter of urgency.
On 9 July 2024, Ms McNicholas advised Mr Ghabrial, the defendants’ solicitor that the new proceeding would be filed and served on his office shortly. She said that they were in the process of finalising the affidavit in support and that she was instructed not to disclose the subject matter of the proceeding prior to filing. She said that the new proceeding was a discrete matter which could be heard and determined separately from the existing proceeding.
In a responding letter, Mr Ghabrial noted that, in principle, his clients accepted the proposed timetable suggested by the plaintiffs. However, he wanted the timetable to include a mediation and said also that his clients’ agreement to the procedural orders was on the basis that ‘no further proceeding is commenced by your clients against our clients’.
In the plaintiffs’ submissions filed on 10 July 2024, the plaintiffs said that if they commenced the new proceeding, that proceeding would concern discrete issues different from those the subject of the existing proceeding. The submission said that some of the plaintiffs may be related to one or more of the potential plaintiffs in the foreshadowed proceeding but the Court had no power in the present proceeding to make orders compelling non-parties to this proceeding to take any steps in relation to the subject matter of that claim.
Analysis
The Court is obliged to exercise its powers so as to give effect to the overarching purpose set out in the CPA namely, to facilitate the just, efficient, timely and cost effective resolution of the real issues in dispute.
In my view, that purpose is best served by the parties attending another mediation. This position is reinforced by the explicit, or at least implicit, acknowledgement of both parties that the joint expert report is important and the parties now have a proper opportunity to engage with the report in a way which was not possible at the time of the second mediation.
Given the paramount obligations which legal practitioners owe to the Court, I am prepared to assume that the new foreshadowed proceeding of which Ms McNicholas speaks deals with subject matter distinct from that in the current proceeding. Assuming that is the case, there should be no overlap in the substance of the two proceedings even if some parties are common to both. It therefore follows that the mediation can focus on the resolution of this case only. Without the issue and service of the foreshadowed proceeding and substantial interlocutory work addressing the issues which it raises, the mediation could not be relevant to that other potential case.
Accordingly, I will make the interlocutory orders agreed by the parties together with an additional order for mediation.
SCHEDULE
GRACON GROUP PTY LTD (ACN 635 616 625) ATF THE GRACON GROUP UNIT TRUST
First Plaintiff
ATAG NOMINEES PTY LTD (ACN 640 182 556) in its capacity as Trustee of the ATAG Family Trust
Second Plaintiff
ILEG NOMINEES PTY LTD (ACN 640 182 289) in its capacity as Trustee of the ILEG Family Trust
Third Plaintiff
ATANAS (AKA ALEX) GRACIEVSKI Fourth Plaintiff
ILE (AKA ELIOTT) GRACIEVSKI
Fifth Plaintiff
-and-
XCELLED PLANT HIRE AND EARTH MOVING PTY LTD (ACN 613 539 601)
First Defendant
AXIS COMMERCIAL CONCRETING PTY LTD (ACN 652 616 156)
Second Defendant
ALEXANDER GRACIEVSKI
Third Defendant
KRISTIAN GRACIEVSKI
Fourth Defendant
KOSTA GRACIEVSKI
Fifth Defendant
ALEKSG ENTERPRISES PTY LTD (ACN 641 496 237) in its capacity as Trustee of the ALEKSG Enterprise Trust
Sixth Defendant
KRISTIANG ENTERPRISES PTY LTD (ACN 652 613 842)
Seventh Defendant
GRACIEVSKI ENTERPRISE PTY LTD (ACN 635 659 595) in its capacity as Trustee of the AK Gracievski Trust
Eighth Defendant
By Counterclaim
XCELLED PLANT HIRE AND EARTH MOVING PTY LTD (ACN 613 539 601)
First Plaintiff by Counterclaim
AXIS COMMERCIAL CONCRETING PTY LTD (ACN 652 616 156)
Second Plaintiff by Counterclaim
A & K BUILDING GROUP PTY LTD (ACN 150 468 876)
Third Plaintiff by Counterclaim
GRACIEVSKI ENTERPRISE PTY LTD (ACN 635 659 595) in its capacity as Trustee of the AK Gracievski Trust
Fourth Plaintiff by Counterclaim
ALEKSG ENTERPRISES PTY LTD (ACN 641 496 237) in its capacity as Trustee of the ALEKSG Enterprise Trust
Fifth Plaintiff by Counterclaim
-and-
GRACON GROUP PTY LTD (ACN 635 616 625) ATF THE GRACON GROUP UNIT TRUST
First Defendant by Counterclaim
BONDS WINDOWS AND DOORS PTY LTD (ACN 132 113 430)
Second Defendant by Counterclaim
ATAG EQUITIES PTY LTD (ACN 640 182 725)
Third Defendant by Counterclaim
ILEG EQUITIES PTY LTD (ACN 640 184 112)
Fourth Defendant by Counterclaim
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