Leon Mancini and Sons Pty Ltd v Tallowate Pty Ltd (No. 2)

[2014] VCC 563

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CIVIL DIVISION

Revised
Not Restricted
Suitable for Publication

COMMERCIAL LIST
GENERAL CASES DIVISION

Case No. CI-12-03514

LEON MANCINI & SONS PTY LTD	Plaintiff
v
TALLOWATE PTY LTD	Defendant

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JUDGE:	HIS HONOUR JUDGE COSGRAVE
WHERE HELD:	Melbourne
DATE OF HEARING:	29-31 January and 28 March 2014
DATE OF JUDGMENT:	29 April 2014
CASE MAY BE CITED AS:	Leon Mancini & Sons Pty Ltd v Tallowate Pty Ltd (No. 2)
MEDIUM NEUTRAL CITATION:	[2014] VCC 563

REASONS FOR JUDGMENT IN RELATION TO COSTS
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Subject:  COSTS         

Catchwords:             COSTS – costs on an indemnity basis – offer of compromise – application of court rules.

Legislation Cited:     County Court Civil Procedure Rules 2008

Judgment:                 Proceeding dismissed, and the plaintiff pay the defendant’s costs of proceeding, including reserved costs, partly on a party/party basis and partly on an indemnity basis.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr G Bloch	Berry Family Law
For the Defendant	Mr M Gronow	Karavias & Associates

HIS HONOUR:

1       On 28 March 2014, judgment in this proceeding was given in favour of the defendant.

2       At the time, the following orders were made:

(a)      by 4pm on 4 April 2014, the defendant file and serve any material upon which it relies with respect to the issue of costs;

(b)      by 4pm on 9 April 2014, the defendant file and serve any responsive material upon which it seeks to rely;

(c)       any further hearing is adjourned to 11 April 2014.

3 The defendant filed an affidavit sworn on 4 April 2014 by Danny Karavias, its solicitor. Exhibited to the letter was an Offer of Compromise dated 5 February 2013. The offer was said to be made to the plaintiff pursuant to Rule 26.02(3)(b) of the County Court Civil Procedure Rules 2008. Pursuant to the offer, the defendant offered “[t]o compromise the proceeding by payment to the plaintiff of the sum of $20,000”.

4       Under the then applicable rules, upon acceptance of the Offer of Compromise, unless the court otherwise ordered, the defendant would pay the costs of the plaintiff in respect of the claim up to and including the day the Offer of Compromise was served.

5       Mr Karavias swore that he forwarded the Offer of Compromise to the plaintiff’s solicitors on 5 February 2013.  The defendant contends that the plaintiff did not accept the offer.  Given that the plaintiff did not file any material responding to the defendant’s affidavit, I infer that the contents of Mr Karavias’ affidavit are correct and that the plaintiff do not take issue with any of the factual matters raised.

6 After the service of the Offer of Compromise and the expiry of the time available for its acceptance, Order 26 of the County Court Civil Procedure Rules 2008 was relevantly amended. Those amendments took effect from 7 October 2013.

7 The amending statutory rules inserted a provision to the effect that Offers of Compromise such as the one in this case, which were made and expired before the rules were amended, are to be assessed in accordance with the rules as they stood in their earlier form. However, Order 26 should otherwise be applied by the court in its current form, including in relation to the defendant’s application for costs.

8       The plaintiff’s claim was not accepted by the court as having merit.  The court preferred the evidence of the defendant’s witnesses to those of the plaintiff’s witnesses on the major points of factual contention. 

9       In all the circumstances, I consider it appropriate to make the following orders:

(a)      the proceeding is dismissed;

(b)      the plaintiff pay the defendant’s costs of this proceeding, including reserved costs, on a party/party basis up to 11am on 7 February 2013, and thereafter on an indemnity basis, such costs to be taxed in default of agreement.