Kombat Pty Ltd v Country Rugby League of NSW Inc

[2012] VCC 1078

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted

AT MELBOURNE

COMMERCIAL LIST
EXPEDITED CASES DIVISION

Case No. CI-11-01532

KOMBAT PTY LTD	Plaintiff
v.
COUNTRY RUGBY LEAGUE OF NSW INC	Defendant

---

JUDGE:	His Honour Judge Anderson
WHERE HELD:	Melbourne
DATE OF HEARING:	10 August 2012
DATE OF JUDGMENT:	10 August 2012 (revised 16 August 2012)
CASE MAY BE CITED AS:	Kombat Pty Ltd v. Country Rugby League of NSW Inc
MEDIUM NEUTRAL CITATION:	[2012] VCC 1078

REASONS FOR JUDGMENT

---

Catchwords:            Practice and procedure – Order for security for costs by the provision of a bank guarantee – Continuing default by the plaintiff – Self-executing order – Delivery of draft guarantee shortly before extended time for compliance expired – Effect of order – Proceeding stood dismissed upon non-compliance with the Court orders.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr F. Gallichio	Francis V. Gallichio
For the Defendant	Mr A. Woods	Browne & Co

HIS HONOUR:

1The matter before the Court today arises because the parties seek clarification of the effect of an order made by His Honour Judge Ginnane on 22 June 2012. The order provided for the dismissal of the plaintiff’s claim unless there was compliance with an order of Her Honour Judge Lewitan made 22 March 2012. The proceeding was commenced by writ, dated 7 April 2011.

2An application for security for costs was determined by Judge Lewitan on 22 March 2012. Her Honour delivered extensive reasons for her decision. The orders that Her Honour made on that day were as follows:

a.The plaintiff shall provide security for the defendant’s costs of the proceedings in the form of an unconditional bank guarantee in the sum of $50,000 up to the first day of the trial.

b.The Bank Guarantee shall be in a form which is agreed by the plaintiff and the defendant or, in default of agreement, settled by the Registrar.

c.The proceedings be stayed pending provision of the Bank Guarantee referred to in the previous paragraph.

d.The costs of the application be reserved.

3Apparently nothing was done by the plaintiff. The defendant, by letter to the Court, dated 4 June 2012, gave notice that it sought the dismissal of the proceeding. A hearing took place before His Honour Judge Ginnane on 22 June 2012. After hearing the parties, His Honour ordered as follows:

a.Unless by 5.00pm on 31 July 2012 the plaintiff provides the bank guarantee of $50,000.00 referred to in the order of Her Honour Judge Lewitan dated 22 March 2012, the proceeding be dismissed with costs.

b.The plaintiff pay the defendant’s costs of the application made this day to be taxed in default of agreement.

4Before me, the plaintiff’s solicitor, Mr Gallichio, characterised Judge Ginnane’s order as simply an order extending the time provided for in the order of Her Honour Judge Lewitan. Later, after I heard from defendant’s counsel, Mr Woods, Mr Gallichio conceded that the order was a self-executing order, the effect of which was that unless the plaintiff complied with the order of Her Honour Judge Lewitan by 31 July 2012, the proceeding was dismissed with costs.

5Mr Gallichio submitted that there had been compliance with the order of Judge Ginnane. He said that the compliance was constituted by the plaintiff’s solicitors forwarding to the defendant’s solicitors at 4.59pm on 31 July 2012, a draft bank guarantee. Mr Gallichio submitted that the service of a draft bank guarantee was all that was contemplated by the order of Her Honour Judge Lewitan, and that this was apparent from paragraph 2 of Her Honour’s order that “the bank guarantee shall be in a form which is agreed by the plaintiff and the defendant, or in default of agreement, settled by the Registrar”.

6Mr Gallichio submitted that, in accordance with what he described as “normal practice” in the Courts, a draft bank guarantee would be provided to the other party’s solicitors. There would then be the opportunity for that party to agree or disagree with the draft, and in the event of a disagreement, the matter would be resolved by the Registrar, or in the case of a matter in the Supreme Court, the Prothonotory.

7In relation to the order of Judge Ginnane, the order provides that unless the plaintiff provides the necessary bank guarantee, by 5pm on 31 July 2012, the proceeding is dismissed with costs. In my view, this order is inconsistent with the suggestion that all that was required by the order was the delivery of the draft bank guarantee one minute prior to the expiry of the order. That would leave no time for the parties to follow what Mr Gallichio describes as the “usual practice” in the Courts for the other party considering the draft, and in the event of disagreement, the matter being resolved by the Registrar or Prothonotory.

8The order of Judge Lewitan was made on 22 March 2012. The order of Judge Ginnane was made three months later on 22 June 2012. The self-executing order was not to operate until 31 July 2012. It was clearly within the control of the plaintiff’s solicitors to have ensured that a draft bank guarantee was delivered to the defendant’s solicitors in sufficient time, if it were to be anticipated that the “usual practice” was to be followed.

9The plaintiff, for whatever reason, which remains presently unexplained, chose not to follow this process and therefore it must accept the consequences. In my view, there was non-compliance with the order of Judge Ginnane, made 22 June 2012. No bank guarantee in the sum of $50,000 was provided by the time specified and, as a consequence, the proceeding thereupon was dismissed with costs.

10Judgment has not yet been entered in accordance with that order. This would be required if the defendant wished to tax its costs. In my view, this is simply a procedural step which does not affect the operation of Judge Ginnane’s order, which has the effect of dismissing the proceeding due to the plaintiff’s default by 31 July 2012 at 5pm.

11The present hearing before the Court arises as a result of a letter from the defendant’s solicitors, dated 1 August 2012. The letter concludes with the following request:

“We would be grateful if you would advise us accordingly in the event that our client is required to take any further active step in order to effect the dismissal of the proceedings or the making of the costs orders set out in the 22 June 2012 orders.

Should you wish to discus the matter please do not hesitate to contact our Darren Kane”.

12As a consequence of the letter having been received, the matter was referred into Court today. I consider, in the circumstances, that the appropriate step for me to take, apart from delivering these reasons, is to make no further order, including any order in relation to costs, as the defendant’s solicitors’ request for an advisory opinion from the Court appears to be also misconceived.

- - -

Certificate

I certify that these 3 pages are a true copy of the reasons for decision of His Honour Judge Anderson delivered on 10 August 2012 (and revised on 16 August 2012).

Dated: 10 August 2012

Caroline Dawes

Associate to His Honour Judge Anderson