John Beever v Roads Corporation (Costs) - [2018] VSC 779

IN THE SUPREME COURT OF VICTORIA AT MELBOURNE
COMMERCIAL COURT
TECHNOLOGY ENGINEERING AND CONSTRUCTION LIST

Not Restricted

S ECI 2018 0078

JOHN BEEVER (AUST) PTY LTD	Plaintiff
v
ROADS CORPORATION	Defendant

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JUDGE:	Digby J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF RULING:	14 December 2018
CASE MAY BE CITED AS:	John Beever v Roads Corporation (Costs)
MEDIUM NEUTRAL CITATION:	[2018] VSC 779

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COSTS – Costs of summary judgment application – Costs of strike out application – Where applications were heard together – Where both applications failed – Default position that costs are ‘costs of the proceeding’ – Whether court should depart from default position – Costs reserved – Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 63.20.

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The Papers:

1. Plaintiff’s Submissions on Costs (19 November 2018)

2. Defendant’s Submissions on Costs (19 November 2018)

3. Plaintiff’s Reply Submissions on Costs (23 November 2018)

4. Defendant’s Reply Submissions on Costs (23 November 2018)

HIS HONOUR:

Introduction

On 28 January 2016, John Beever (Aust) Pty Ltd (plaintiff) and Roads Corporation (defendant) entered into a construction contract (the construction contract) in respect of strengthening works to the Wallen Road Bridge in Hawthorn, in the State of Victoria.[1]
[1]CB068.

On 11 April 2017, the defendant certified that practical completion of the works was achieved on 22 March 2017.[2] At the earliest, the Defects Liability Period (DLP) under the construction contract expired in March 2018.
[2]CB646 and 647. While the parties contest whether the defects liability period commenced on 22 March 2017 (being the date specified in the certificate), or 11 April 2017 (being the date the certificate was received), the question does not require resolution on return of the current applications (T9.23–10.2).

On 26 October 2018, in John Beever v Roads Corporation[3] (the judgment), I dismissed:

(a) the plaintiff’s application for summary judgment by Summons dated 16 May 2018; and

(b) the defendant’s application to strike out by Summons dated 29 May 2018, based substantially on a lack of proper particularisation and also failure to plead a relevant ‘reference date’ in relation to the plaintiff’s Statement of Claim.

[3][2018] VSC 635.

Following judgment I directed the parties to provide submissions as to the final form of orders sought, including as to costs.

Costs Dispute
Plaintiff’s Submissions

With respect to its summary judgment application, the plaintiff contends the most appropriate order is for the costs to be reserved.[4] It refers to a number of Victorian authorities including those referred to below dealing with the costs of an unsuccessful summary judgment application.[5]
[4]Plaintiff’s Submissions on Costs, 19 November 2018 (Plaintiff’s Submissions), [2].
[5]Ibid [3]–[4].

(a) In Cullia v Gook,[6] Hargrave J ordered costs in the cause after an unsuccessful summary judgment application by the defendant.[7]

(b) In Webb v Ryan,[8] Zammit AsJ (as her Honour then was) ordered costs in the cause after an unsuccessful application for summary judgment by the defendant.[9]

(c) In Aquatec-Maxcon Pty Ltd v Minson Nacap Pty Ltd,[10]…

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: [2018] VSC 779
Decision Date: 14 December 2018

CaseChat Overview and Summary

In the case of John Beever v Roads Corporation, the dispute arose from a claim brought by the plaintiff against the defendant concerning alleged negligence and the failure to maintain safe road conditions. The matter was heard in the County Court of Victoria. The plaintiff sought damages for injuries sustained in an accident on a road managed by the defendant.

The central legal issue before the court was whether the costs incurred by the plaintiff in relation to two unsuccessful applications, one for summary judgment and another for the striking out of the defendant's defence, should be considered as costs of the proceeding or as costs incurred in the applications themselves. The plaintiff argued that these costs should be treated as costs of the proceeding, while the defendant contended that they should be regarded as costs of the applications.

The court held that, in accordance with the default position set out in Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 63.20, the costs of unsuccessful applications for summary judgment and strike out are generally to be considered as costs of the proceeding. The court found that there were no compelling reasons to depart from this default position in this case. Consequently, the plaintiff's costs in relation to the unsuccessful applications were ordered to be costs of the proceeding. The court reserved the matter of costs pending further submissions on the quantum of costs to be awarded.

No final orders were made in this extract of the case.

Orders