L&H Group v Edwards No 2
[2018] VCC 119
•23 February 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMERCIAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-17-00752
| L & H GROUP (A LIMITED PARTNERSHIP) (ABN 19 730 781 473) | Plaintiff |
| v | |
| ADAM BRETT EDWARDS & ANOR | Defendants |
---
JUDGE: | HER HONOUR JUDGE MARKS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | Made on the papers, written submissions filed by the parties | |
DATE OF RULING: | 23 February 2018 | |
CASE MAY BE CITED AS: | L&H Group v Edwards No 2 | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 119 | |
REASONS FOR RULING
---
COSTS – where stay application made under section 20 Service and Execution of Process Act 1992 (Cth).
---
HER HONOUR:
INTRODUCTION
The plaintiff issued proceedings in this Court. The defendants applied for a stay of the proceeding under section 20 of the Service and Execution of Process Act 1992 (Cth) (‘the Act’). They wanted the case against them dealt with in Western Australia, not Victoria.
On 1 February 2018 I ruled that I am satisfied that the District Court of Western Australia is the appropriate court to hear the trial: L&H Group v Edwards [2018] VCC 23 (‘Stay Reasons’).
I indicated that I will order a stay of the proceeding pursuant to section 20 of the Act.
The parties do not agree on what should follow in relation to the costs of this proceeding. Both the plaintiff and the defendants have filed written submissions as to costs. Neither requires a hearing.
Having considered the written submissions and the history of this matter I will order that the plaintiff pay the defendants’ costs fixed at $650.
USUAL ORDER RE COSTS ON STAY APPLICATION
As I indicated in my Stay Reasons, the usual order as to costs where an application for a stay under s20 of the Act is successful is that the plaintiff pay the defendants’ costs, to be assessed by the Costs Court in default of agreement. I said that the fact that the defendants are self-represented would mean it is likely that only their outgoings are recoverable (such as the cost of the video link for the hearing before me).
COSTS SOUGHT BY DEFENDANTS
The defendants seek to have the plaintiff pay them costs of $1,185.00 being their outgoings as follows:
· $303.90 – costs of issuing their summons of 7 April 2017;
· $86.90 – costs of a process server to serve the summons and supporting affidavit on 9 May 2017;
· $397.10 – cost of the video link for the hearing on 25 May 2017; and
· $397.10 – costs of video link for the hearing on 2 August 2017.
The defendants concede that the plaintiff has already paid their costs ordered in relation to a directions hearing in September 2017.
The plaintiff has conceded that the defendants’ outgoings total $795.60. The defendants claim $1,185.00.
COSTS SOUGHT BY THE PLAINTIFF
Costs of the proceeding generally
The plaintiff says the costs of the proceeding should be ordered in its favour as costs in the cause upon the matter being decided in Western Australia, or that they should be reserved.
The first reason given for this is that the ruling by the Court was not made on the basis Victoria did not have jurisdiction to hear the matter.
This submission is misconceived. Stay applications under s20 of the Act always involve an application to stay a proceeding where the original court has jurisdiction. It is made on the basis that another court also has jurisdiction and is the appropriate court in the circumstances to determine the relevant matters.
The second reason given is that the exercise of the discretion relating to the ultimate stay was based upon material that was not known to the plaintiff at the time the proceedings commenced.
However, the plaintiff knew at the time it issued on 24 February 2017 that the defendants lived in Western Australia. It knew then or shortly afterwards of Mr Cockram’s medical condition and the defendants’ financial position. The defendants sent a letter on 20 February 2017 to the plaintiff’s solicitor detailing these matters (Exhibit RWC-7 to Mr Cockram’s affidavit dated 19 June 2017). By the time of the hearing before me on 2 August 2017 other material relevant to the success of the stay application had been filed.
The plaintiff did not agree to the stay but continued to vigorously oppose it, as it was entitled to do. Counsel appeared for the plaintiff at the hearings and written submissions and affidavits were filed up until December 2017.
I am not satisfied in the circumstances that the plaintiff would have issued in Western Australia had it known of those matters before issuing.
I will not make any order in relation to costs of the proceeding.
Costs of and in respect to the ‘alteration defence’
The plaintiff seeks costs of and occasioned by the pursuit and subsequent abandonment of what it describes as the alteration defence.
No details are given in the written submissions filed 13 February 2018 for the plaintiff of what the ‘alteration defence’ is. I assume that what is meant is the following.
In the defendants’ submissions filed 19 July 2017 various reasons were given why the matter should be heard in the District Court of Western Australia. One of the reasons, at paragraph 15, said:
There is a dispute between the parties about an agreement as to the place in which proceeding should be instituted. Mr Cockram says he recalls amending clause 12 of the application for credits terms and conditions by adding the words “WA AND NOT” below that clause and indicating the place for insertion of those words between the words “of” and “Victoria” and that traces of his amendment are visible on the copy of the application for credit sent to him by the plaintiff’s lawyers with a letter of demand dated 25 January 2017. Mr Cockram says that the plaintiff’s failure to refer to his amendment in its letter of July 2014 offering credit to the limit of $10,000 signifies the plaintiff’s assent to the amendment. The plaintiff says there is no amendment evident on the original application but has refused to facilitate Mr Cockram’s inspection of the original document by sending it to the custody of the magistrates Court of Western Australia which has agreed to hold it in its possession for that purpose and to supervise Mr Cockram’s inspection.
At the hearing before me on 2 August 2017, Mr Cockram advised that he must have been mistaken about altering the application for credit. He said the defendants would no longer seek to run that defence. This had the effect of limiting the issues in dispute and the number of people required to give evidence about them, as the plaintiff’s witnesses regarding chain of custody of the credit application are not required to give evidence about that.
It meant that some parts of the affidavit material filed by the defendants, and in response by the plaintiff, and part of the written submissions were no longer relevant.
The plaintiff says its costs of and in respect of the alteration defence are:
· The affidavits of Russell Cockram on 28 April 2017, Adam Edwards of 19 June 2017, half the costs of Russell Cockram of 19 June 2017, the affidavit of Lynda Moir of 19 June 2017, the affidavit of Andrew Soos of 19 May 2017, the affidavit of Colman Maloney of 24 July 2017.
· Half the costs of the hearing on 2 August 2017 including the written submission.
The affidavits of Russell Cockram, Adam Edwards and Lynda Moir were all filed for the defendants. The plaintiff did not draft them. It may be that what is wanted is an order for costs of perusing them.
No amounts have been indicated pursuant to the scale of costs as to the quantum sought on any of these matters.
The affidavit of Andrew Soos of 19 May 2017 exhibits the application for credit and guarantee, and states that there is no amendment to it. It also details what happens when credit extensions are sought (an issue which remains in the matter). The affidavit of Colman Maloney exhibits correspondence where the defendants seek to see the original credit application documents, and the plaintiff refuses to part with custody in the circumstances.
A minor part of the hearing on 2 August 2017 dealt with the alteration defence. Part of the 28 July 2017 written submission of the plaintiff relied on at that hearing dealt with the alteration defence. The submissions also dealt with other matters of relevance to the section 20 application. Most of the hearing involved clarifying what defences the defendants wanted to run, and what the plaintiff had to say about those.
The plaintiff avoided the costs of an additional hearing, subsequent to the defendants abandoning the alteration defence, because I made orders allowing for the filing of further affidavits and written submissions, and made my ruling on the stay application, without the need for another hearing.
The defendants submit in their written submission of 15 February 2018 that:
Costs of and in respect to the "alteration" defence
The alteration of the defence by verbal submission in the hearing of the 2 August 2017 was as stated on that day that the defendant became persuaded by arguments put forward by the plaintiff in subsequent correspondence. The initial defence that the agreement had been altered from its original format was created in its entirety by the poor quality of the evidence provided by the plaintiff.
Copies of the agreement provided to the defendant by the plaintiff showed many marks that were not present on the original document when it was provided by the defendant to the plaintiff in 2014. The document produced in the hearing before His Honour Judge Woodward on the 25th May 20.17 had been dismembered from its original format when signed by the defendant adding to the uncertainty.
The defendants arranged with the Midland Magistrates Court to take custody of the document in question to enable the defendants to view the original document. The plaintiff declined to allow this. This may have also alleviated the alteration to the defence, as the defendant may have been satisfied otherwise prior to the hearing of the 2 August 2017 and before submissions were made to the court.
For the reasons stated above the alteration of defence should not be considered in the formation of the costs orders.
The defendants are self-represented and appeared at the hearings by video link from Western Australia. They were faced with responding to a claim made in relation to a credit application and associated documents of which the original was in the possession of the plaintiff. Nonetheless, the concession as to abandoning the alteration defence could have been made a little earlier since it, on the defendants’ material, came about from the defendants seeing the plaintiff’s correspondence. It had this before the hearing. Costs were incurred unnecessarily as the result of the delay.
Taking all these matters into account, I will order that the plaintiff pay the defendants’ costs fixed at $650.
---
Certificate
I certify that these 6 pages are a true copy of the reasons for ruling of her Honour Judge Marks, delivered on 23 February 2018.
Dated: 23 February 2018
Samantha Marinic
Associate to Her Honour Judge Marks
0