Lanskey Constructions Pty Ltd v S.H.A. Premier Constructions Pty Ltd (No 2)
[2019] VCC 600
•7 May 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMERCIAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-18-05482
| LANSKEY CONSTRUCTIONS PTY LTD | Plaintiff |
| v | |
| S.H.A. PREMIER CONSTRUCTIONS PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE COSGRAVE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | Both parties filed written submissions on 2 May 2019 and reply submissions on 3 May 2019 | |
DATE OF RULING: | 7 May 2019 | |
CASE MAY BE CITED AS: | Lanskey Constructions Pty Ltd v S.H.A. Premier Constructions Pty Ltd (No 2) | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 600 | |
REASONS FOR RULING (No 2)
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B Reid | CDI Lawyers |
For the Defendant | Mr N Pane QC | Thomson Geer |
HIS HONOUR:
1 On 29 April 2019, I delivered my reasons for ruling in this matter. The ruling dealt with the plaintiff’s application for summary judgment pursuant to section 16 of the Building and Construction Industry Security of Payments Act 2002 (Vic) (“the SOP Act”) for an amount of $601,620.46. The application related to the following claims:
(a) progress claim 4 dated 31 October 2018 for $167,321.31 (“PC-4 Kialla”);
(b) progress claim 4 dated 25 September 2018 for $326,189.49 (“PC-4 Mentone”);
(c) progress claim 5 dated 31 October 2018 for $434,293.15 (“PC-5 Mentone”);
2 In paragraph 51 of my reasons, I set out a timetable for the parties to file and serve submissions regarding the orders sought to give effect to the ruling. The parties have now filed those submissions.
3 In relation to proceeding CI-18-05006, the plaintiff proposes the following orders:
(a) the proceeding is dismissed;
(b) costs in the cause in the Supreme Court of Victoria proceeding ECI201901064.
4 In relation to proceeding CI-18-05842, the plaintiff proposes the following orders:
(a) the plaintiff’s application by Summons dated 8 February 2019 for leave to amend its Originating Motion dated 6 December 2018 is dismissed;
(b) the plaintiff’s application by Summons dated 8 February 2019 for summary judgment pursuant to section 61 of the Civil Procedure Act 2010 (Vic) is dismissed;
(c) the proceeding is dismissed;
(d) costs in the cause in the Supreme Court of Victoria proceeding ECI201901064.
5 In its recent reply submissions, S.H.A. Premier Constructions Pty Ltd (“S.H.A.”) stated that it consented to both sets of proposed orders filed by Lanskey Constructions Pty Ltd (“Lanskey”) except insofar as it related to costs.
6 Lanskey made two submissions in relation to costs. It first submitted that there should be no order as to costs. Alternatively, it submitted that costs should be awarded in accordance with the outcome of proceeding ECI201901064 in the Supreme Court of Victoria. It appears that in this later proceeding, Lanskey seeks final relief against S.H.A. in relation to the Mentone contract, including in respect of PC-4 Mentone and PC-5 Mentone.
7 Lanskey contends that there should be no order for costs on the basis that each party had some success in the application before me. On the one hand, S.H.A. paid Lanskey the sum of $167,321.31 after Lanskey issued the application in relation to PC-4 Kialla. Lanskey submitted that if S.H.A. had paid that money when it became due and payable, then there would have been no need to include it in the proceeding. As it was, S.H.A.’s solicitor filed an affidavit on 6 March 2019, the day of the hearing before me, to say that S.H.A. had paid the money. On the other hand, S.H.A. succeeded in resisting the application for summary judgment made by Lanskey in relation to PC-4 Mentone and PC-5 Mentone.
8 S.H.A. contends that because Lanskey has not identified any particular costs which were incurred or increased by including the PC-4 Kialla claim in the proceeding, at best for Lanskey, there should be some minimal reduction in the costs which it ought pay to S.H.A.
9 Alternatively, Lanskey submits that where an application for summary judgment fails, the usual order is that costs be in the cause, presumably pending the final resolution of the application under section 16 of the SOP Act.
10 S.H.A. opposes this order because:
(a) it denies that the court has jurisdiction to make a costs order dependent upon the outcome of a proceeding in another court;
(b) even if the court does have jurisdiction to make such a costs order, it should not make an order in this case.
11 S.H.A. contends that the Supreme Court proceeding referred to by the plaintiff is one in which Lanskey seeks final relief against S.H.A. in relation to the Mentone contract. It is a qualitatively different proceeding from an application for summary judgment under section 16 of the SOP Act which awards relief of a provisional nature. Under section 47 of the SOP Act, it is clear that an order for final relief can override the effect of any earlier order made pursuant to a section 16 application.
12 It appears that Lanskey has already issued separate proceedings in relation to the Mentone contract in which it seeks final relief against S.H.A. Accordingly, for practical purposes, this proceeding is completed. Lanskey has shown no desire to pursue a trial on the section 16 argument raised in its application. It has decided to bypass this step and move immediately to an application for final relief.
13 While both parties had success in parts of the application, making no order as to costs is not appropriate. Having regard to the operation of the SOP Act and the Civil Procedure Act 2010 (Vic), a party in S.H.A.’s position should not unreasonably refuse to pay monies to a plaintiff when the debt is due and payable. This can have the effect of a party in Lanskey’s position wasting time and money pursuing litigation in the courts and tying up valuable court resources.
14 However, in this context, S.H.A. enjoyed the greater success in avoiding summary judgment for a substantial sum. I accept that quite often, where an application for summary judgment fails, the court orders that costs be in the cause to await the outcome of the trial. This would not be applicable in the present case because Lanskey has abandoned the application under section 16 of the SOP Act and moved to an application for final relief. While the costs order should reflect S.H.A.’s success in the proceeding, it is also proper to acknowledge Lanskey’s success in relation to PC-4 Kialla.
15 Accordingly, in relation to proceeding CI-18-05006, I order that:
(a) the proceeding is dismissed;
(b) the plaintiff pay 70 per cent of the defendant’s costs of the proceeding, such costs be taxed on a standard basis in default of agreement.
16 In relation to proceeding CI-18-05842, I order that:
(a) the plaintiff’s application by summons dated 8 February 2019 for leave to amend its originating motion dated 6 December 2018 is dismissed;
(b) the plaintiff’s application by summons dated 8 February 2019 for summary judgment pursuant to section 61 of the Civil Procedure Act 2010 (Vic) is dismissed;
(c) the proceeding is dismissed;
(d) the plaintiff pay 70 per cent of the defendant’s costs of the proceeding, such costs be taxed on a standard basis in default of agreement.
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Certificate
I certify that these 4 pages are a true copy of the reasons for decision of his Honour Judge Cosgrave delivered on 7 May 2019.
Dated: 7 May 2019
Meagan du Jardin
Associate to his Honour Judge Cosgrave
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