Hera Project Pty Ltd v Bisognin [No 7] - [2017] VSC 439

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PROPERTY LIST

S CI 2016 03457

HERA PROJECT PTY LTD

Plaintiff

GINO ANDREW BISOGNIN

- and -

LEAH JOAN BISOGNIN

First Defendant

Second Defendant

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JUDGE:	RIORDAN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 JUNE 2017
DATE OF JUDGMENT:	29 JUNE 2017 (ex tempore)
CASE MAY BE CITED AS:	HERA PROJECT PTY LTD V BISOGNIN & ANOR [No 7]
MEDIUM NEUTRAL CITATION:	[2017] VSC 439

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COSTS – Offers of compromise – Non-disclosure of relevant documents – Failure to discover relevant documents in earlier proceeding – ‘High-handed’ conduct – Indemnity costs ordered – National Australia Bank Ltd v Petit-Breuilh (No 2) [1999] VSC 395 considered.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr L Warren	Russell Kennedy
For the Defendant	Mr L Wirth	T F Grundy Lawyer

HIS HONOUR:

On 22 May 2017, I entered judgment for the plaintiff in this proceeding and ordered that the defendants specifically perform the 2015 Contract.[1]
[1]Hera Project Pty Ltd v Bisognin [No 3] [2017] VSC 268 (Riordan J). In these reasons, I adopt the same defined terms.

The plaintiff seeks an order for costs on an indemnity basis and the defendants submit that there should be no order as to costs or that the defendants should pay a percentage of the plaintiff’s costs (for example, 50%) on a standard basis.

The plaintiff’s submissions

The plaintiff submits that an indemnity costs order is justified on the basis of:

(a) the deliberate non-disclosure of the CMJ Contract; and
(b) other conduct causing loss of time and inconvenience to the Court.

With respect to ‘deliberate non-disclosure of the CMJ Contract’, the plaintiff submits that the defendants falsely denied the existence of the CMJ Contract and did not give specific discovery of it. It was submitted that this was part of a deliberate policy by the defendants not to disclose the existence of the CMJ Contract.

The plaintiff submitted that the other conduct causing loss of time and inconvenience was as follows:

(a) The cross-examination of Mr Konstandellos as to his credit.
(b)The defendants’ claim of privilege over a paragraph in the document subpoenaed from Contour.

(c) Mr Bisognin was an unreliable witness.

The plaintiff further relied upon the following offers made prior to this proceeding:

(a)A letter dated 13 August 2015 in which the plaintiff offered to pay the balance of the deposit of $990,000 upon registration of the plan of subdivision (subject to it being held in trust until settlement); confirmation that the defendants would meet all the conditions set out in the relevant planning permit; the plaintiff would pay the relevant authorities charges subject to deduction at settlement; and special condition 8 being deleted.
(b)A letter dated 13 October 2015 in which an offer was made on the basis that the plaintiff would pay the costs of meeting the conditions of the planning permit; special condition 8 of the contract being deleted; and the proceedings at that time…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] VSC 439
Decision Date: 29 JUNE 2017 (ex tempore)

CaseChat Overview and Summary

The case before the court involved Hera Project Pty Ltd as the plaintiff and Bisognin as the defendant. The primary nature of the dispute was the failure of the defendant to disclose relevant documents, leading to costs being awarded against him. This case was heard in the Supreme Court of Victoria. The plaintiff sought indemnity costs, arguing that the defendant's conduct was not only unreasonable but also high-handed, and that the failure to disclose relevant documents was detrimental to the judicial process.

The legal issues the court had to decide were whether the defendant's conduct warranted indemnity costs and whether the failure to disclose relevant documents was egregious enough to justify such a severe penalty. The court considered whether the defendant's actions were unreasonable, whether they breached any duty to the court, and whether the failure to disclose documents was a significant factor in the proceedings. The case referenced the principles laid out in National Australia Bank Ltd v Petit-Breuilh (No 2) [1999] VSC 395, which provided a framework for assessing such conduct.

The court found that the defendant's conduct was indeed high-handed and unreasonable. It concluded that the failure to disclose relevant documents not only prejudiced the plaintiff but also caused unnecessary delay and expense. The court held that the defendant's conduct warranted the award of indemnity costs. The reasoning was grounded in the need to uphold the integrity of the judicial process and deter similar conduct in the future. The court emphasised that such orders should not be made lightly but were justified in this case due to the significant impact on the proceedings.

The final orders of the court included an award of indemnity costs to the plaintiff, Hera Project Pty Ltd, against the defendant, Bisognin. The court's decision underscored the importance of full disclosure in legal proceedings and the consequences of failing to meet this obligation.

Orders