Hera Project Pty Ltd v Stevenson - [2020] VSC 185

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT

S CI 2018 02233

HERA PROJECT PTY LTD	Plaintiff
v
CRAIG STEVENSON	Defendant

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JUDGE:	CHAMPION J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 February 2019
DATE OF JUDGMENT:	17 April 2020
CASE MAY BE CITED AS:	Hera Project Pty Ltd v Stevenson
MEDIUM NEUTRAL CITATION:	[2020] VSC 185 (First revision 17 April 2020)

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COSTS – Whether plaintiff is entitled costs – Indemnity costs – Supreme Court (General Civil Procedure) Rules 2015 – Indemnity costs ordered against defendants’ solicitor – Defendants’ solicitor caused costs to be incurred improperly or without reasonable cause or to be wasted by a failure to act with reasonable competence and expedition – Plaintiff awarded costs pursuant to s 24 of the Supreme Court Act1986 and r 63.23 of the Supreme Court (General Civil Procedure) Rules 2015, such amount to be in the total sum of $55,382.59 (excluding GST).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr L Warren	Russell Kennedy Lawyers
For the Defendant	Mr C Stevenson was not represented by Counsel and represented himself	A Ace Solicitors

HIS HONOUR:

Introduction

On 11 July 2018 and 9 October 2018, Hera Project Pty Ltd (‘the plaintiff’) applied to the Supreme Court of Victoria for the contempt of Court of Gino and Leah Bisognin (‘the defendants’), pursuant to rr 66.05(1)(a) and 75.06 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’).

On 19 July 2019, I determined that the defendants had each committed contempt of Court by failing to comply with:

(a) the freezing order handed down by Riordan J on 28 June 2018 (‘the first freezing order’);[1] and,

(b) the order made by Riordan J made on 31 August 2018, to which ancillary orders in support of the first freezing order were made, and which was extended on 3 October 2018 (‘the second freezing order’).[2]

[1]See Hera Project Pty Ltd v Bisognin [2019] VSC 483 [12]–[13].

[2]Ibid [19]–[20], [24]–[25].

These reasons concern an application by the plaintiff for an order for costs to be awarded against Mr Craig Stevenson, [‘Mr Stevenson’] trading as A Ace Solicitors, of 21 Hanlon Street, Bundamba, Queensland.

Mr Stevenson acted as the solicitor for Gino and Leah Bisognin, until he filed a Notice of Ceasing to Act on 22 November 2018.

Background

The background of these matters is set out in Hera Project Pty Ltd v Bisognin.[3] It is not necessary to rehearse the detail of those proceedings for the purpose of these reasons. In summary, I determined that both defendants committed contempt of this Court by failing to comply with the abovementioned freezing orders and by failing to provide the relevant material by the required date. On 16 September 2019, I concluded that it was appropriate that the defendants pay the plaintiff’s costs of the proceedings, including any reserved costs, on an indemnity basis. Both the defendants were convicted and sentenced to six months’ imprisonment.
[3][2019] VSC 483.

At no…

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.

Continue reading Hera Project Pty Ltd v Stevenson

Details

AGLC: Hera Project Pty Ltd v Stevenson [2020] VSC 185
Case: [2020] VSC 185
Decision Date: 17 April 2020

CaseChat Overview and Summary

Hera Project Pty Ltd brought an action against the defendants, seeking recovery of costs. The defendants had been ordered to pay costs to the plaintiff after their solicitor caused costs to be improperly incurred or wasted due to a failure to act with reasonable competence and expedition. The plaintiff applied for indemnity costs against the defendants’ solicitor, pursuant to s 24 of the Supreme Court Act 1986 and r 63.23 of the Supreme Court (General Civil Procedure) Rules 2015. The legal issues before the court were whether the plaintiff was entitled to indemnity costs and, if so, in what amount. The court considered the relevant provisions of the Supreme Court Act and the Rules, as well as the circumstances of the case. It found that the defendants’ solicitor had acted improperly and without reasonable cause, leading to wasted costs. The court ordered the defendants to pay the plaintiff indemnity costs in the total sum of $55,382.59 (excluding GST). This amount represented the costs incurred by the plaintiff that were directly attributable to the defendants’ solicitor's improper conduct. The court's decision was based on the clear provisions of the Supreme Court Act and the Rules, which provide for indemnity costs where a party's solicitor causes costs to be improperly incurred or wasted. The court noted that the defendants' solicitor had acted in a manner that warranted the imposition of indemnity costs, and that the amount awarded was commensurate with the plaintiff's actual costs. The court's order for indemnity costs reflected the importance of holding parties accountable for the improper conduct of their legal representatives and ensuring that the costs of litigation are not unjustly borne by the innocent party.

Orders