IGA Distribution Pty Ltd v King and Taylor Pty Ltd

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 2068 of 2001

IGA DISTRIBUTION PTY LTD	Plaintiff
v
KING & TAYLOR PTY LTD	First Defendant
DELAHEY PROPERTIES PTY LTD	Second Defendant

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RULING NO. 8

JUDGE:	Nettle J
WHERE HELD:	Melbourne
DATES OF HEARING:	19 September 2002
DATE OF RULING:	19 September 2002
CASE MAY BE CITED AS:	IGA Distribution Pty Ltd v King & Taylor Pty Ltd and anor
MEDIUM NEUTRAL CITATION:	[2002] VSC 412

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R.M. Garratt QC with Mr M.K. Moshinsky	Cornwall Stodart
For the First Defendant	Mr J.D. Hammond QC with Ms J.E. Richards	Richard Szental
For the Second Defendant	Mr P.J. Hayes with Ms L. Hannon	Efron & Associates

HIS HONOUR:

Mr Garratt makes application for costs of the application made by the first defendant to recall Ms Zusman and to add Mr Roger King to the list of first defendant’s witnesses. The application has taken in the order of one-and-a-half hours on the eleventh day of trial; having been made without notice or warning.

Mr Hammond opposes any order for costs and submits that consideration of costs should stand over until the end of the trial so that it may be seen whether or not there was any substance in the allegation sought to be advanced by the tender of the further evidence.

I consider it is appropriate that the plaintiff should have its costs of the application. The application is discrete, and has been significant both in terms of argument and time necessary for disposal, unlike some of the other and usual interlocutory applications which are made in the course of running.

Whether or not the plaintiff succeeds at the end of the day will not determine or inform the view which one takes about the propriety of the course which has been adopted by the first defendant in making application at this stage of the trial or as to whether or not it ought to have been successful in the making of that application.

Accordingly, upon the first defendant’s application this morning there will be an order that it pay the plaintiff’s costs of that application.

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CaseChat Overview and Summary

In the Supreme Court of Victoria, the plaintiff, IGA Distribution Pty Ltd, initiated proceedings against the first defendant, King & Taylor Pty Ltd, and the second defendant, De Lahey Properties Pty Ltd. The matter involved a dispute concerning the costs incurred by the plaintiff in response to an application made by the first defendant to recall a witness and to add a new witness to their list during the course of the trial. The application for costs was significant as it was made without prior notice or warning, and it consumed a substantial amount of time during the eleventh day of the trial.

The primary legal issue before the court was whether the plaintiff should be awarded the costs of the application made by the first defendant. The plaintiff argued that the application was not only discrete in nature but also substantial in terms of the time and argument required to resolve it, justifying an award of costs. The first defendant opposed the award of costs, suggesting that the matter should be deferred until the conclusion of the trial to assess the merit of the application and the evidence it sought to introduce.

The court, presided over by Nettle J, ruled that the plaintiff was entitled to its costs of the application. The judge considered the application to be significant and discrete, unlike other typical interlocutory applications made during the course of a trial. The decision to award costs was not contingent upon the ultimate outcome of the trial but was based on the merits of the application itself and the procedural steps taken by the first defendant. Accordingly, the court ordered that the first defendant pay the plaintiff's costs of the application.

The final order of the court was that the first defendant, King & Taylor Pty Ltd, would pay the costs incurred by the plaintiff, IGA Distribution Pty Ltd, in relation to the application to recall a witness and to add a new witness to the list of evidence. This decision underscored the court's approach to managing costs in complex litigation, particularly when applications are made without notice and significantly impact the proceedings.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established