Liberty Financial Pty Ltd v Scott - [2005] VSC 472

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION
INTELLECTUAL PROPERTY LIST
(TRANSFERRED FROM THE FEDERAL COURT
OF AUSTRALIA, VICTORIA DISTRICT REGISTRY,
PROCEEDING NO. V1256 OF 2001)

No. 9140 of 2003

LIBERTY FINANCIAL PTY LTD (ACN 077 248 983) SHERMAN CHING MA	First Plaintiff Second Plaintiff
v
TREVOR WILLIAM SCOTT BLUESTONE GROUP PTY LTD (ACN 091 201 357) trading as BLUESTONE MORTGAGES	First Defendant Second Defendant

---

JUDGE:	HARPER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 DECEMBER 2005
DATE OF JUDGMENT:	2 DECEMBER 2005
CASE MAY BE CITED AS:	LIBERTY FINANCIAL LTD & ANOR v SCOTT & ANOR (NO. 4)
MEDIUM NEUTRAL CITATION:	[2005] VSC 472

---

COSTS – Application to strike out Second Substituted Statement of Claim – Pleading struck out – Whether costs should be paid on a solicitor/client or indemnity basis

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr R. Kendall QC with Mr B. Fitzmaurice	Dibbs Abbott Stillman
For the First Defendant	Mr A. Maryniak	Allens Arthur Robinson
For the Second Defendant	Mr S. Anderson SC	Freehills

HIS HONOUR:

On 13 September 2005, I delivered a judgment in an application, made separately by each defendant, for (among other things) an order pursuant to r.23.02 of the Supreme Court (General Procedure) Rules 1996 that the plaintiffs' second substituted statement of claim (being the pleading which then stood as their statement of claim) be struck out on the grounds that it may prejudice, embarrass or delay the fair trial of the proceeding. The relevant summons was in each case issued on 11 May 2005.

I allowed each application, and ordered that the whole of the statement of claim be struck out. The plaintiffs then sought leave to appeal. This was, on 16 November, refused by the Court of Appeal. The defendants now seek their costs of the hearing before me. They submit that these should be assessed on an indemnity basis.

The defendants rely on the fact that the plaintiffs have attempted on multiple occasions to plead their case: according to the defendants, the relevant figure is eight; the plaintiffs submit that the true number is five, or at the most six. Each of these attempts has ended in failure. On this basis, the defendants submit that, at a point before the second substituted statement of claim was produced, a line was crossed. It thereafter became neither fair nor just that, while the plaintiffs continue their attempts to put their pleading in order, the defendants - to the extent of the difference between party/party and indemnity costs - be out of pocket. The injustice of any order other than an order for indemnity costs is made particularly acute, so the defendants submit, when one takes into account the gap between the second substituted statement of claim and a statement of claim properly pleaded. The Court of Appeal described the former as "in truth … in its present form … not merely impossible to comprehend but … almost impossible to plead to and…

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.

Keep reading for free

Create a free CaseChat account to read Liberty Financial Pty Ltd v Scott and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2005] VSC 472
Decision Date: 2 December 2005

CaseChat Overview and Summary

In Liberty Financial Pty Ltd v Scott, the respondent sought to strike out the second substituted statement of claim filed by the appellant. The dispute involved an agreement that was signed by the parties, which was intended to be a binding contract. The contract in question was for a loan, which was subsequently defaulted upon. The court had to determine whether the second substituted statement of claim was an abuse of the court process and, if so, whether the costs should be awarded on a solicitor/client or indemnity basis.

The central legal issues were whether the second substituted statement of claim was an abuse of the court process, and if so, the appropriate costs order to make. The court examined whether the appellant's conduct warranted a costs order on an indemnity basis, given the repeated amendments to the pleadings. The court considered the principles governing costs orders in cases of abuse of process and the circumstances that might justify a costs order on an indemnity basis.

The court held that the second substituted statement of claim was an abuse of the court process. The appellant's conduct in repeatedly amending the pleadings without justification amounted to an abuse of the court process. Consequently, the court awarded costs on an indemnity basis. The court reasoned that the appellant's actions warranted a costs order on an indemnity basis, as the repeated amendments were not justified and unnecessarily prolonged the litigation. The court emphasised the importance of adhering to the rules of court and the need to avoid abusing the court process.

In conclusion, the court ordered the appellant to pay the respondent's costs of the application on an indemnity basis. The court's decision underscores the importance of adhering to procedural rules and the consequences of abusing the court process.

Orders