Ma and J Tripodi Pty Ltd v Swan Hill Chemicals Pty Ltd (No 3)
[2018] VCC 710
•22 May 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMERCIAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-13-04200
| M A & J TRIPODI PTY LTD | Plaintiff |
| v | |
| SWAN HILL CHEMICALS PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE COSGRAVE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 May 2018 | |
DATE OF JUDGMENT: | 22 May 2018 | |
CASE MAY BE CITED AS: | MA & J Tripodi Pty Ltd v Swan Hill Chemicals Pty Ltd (No 3) | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 710 | |
REASONS FOR JUDGMENT
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Subject:COSTS – INTEREST
Catchwords: COSTS – offer of compromise – offer expressed to be inclusive of costs and interest – offer refused – whether plaintiff enjoyed greater success at trial in circumstances where its costs are not known
INTEREST – whether successful plaintiff entitled to interest – level of discretion – rejection of offer of compromise – interest to be calculated from commencement of proceeding unless good cause shown – whether settlement offer constitutes good cause
Legislation Cited: Civil Procedure Act 2010 (Vic); County Court Act 1958 (Vic); County Court Civil Procedure Rules 2008 (Vic); Supreme Court Act 1986 (Vic); Victorian Civil and Administrative Tribunal Act 1998 (Vic)
Cases Cited:Braham v Stephan (No 2) [2015] VSC 87; Chen v Chan [2009] VSCA 233; Clarke v Foodland Stores Pty Ltd [1993] 2 VR 382; Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322; Hodgson v Amcor Ltd (No 9) [2012] VSC 205; Hosking v Ipex Software Services Pty Ltd (No 2) [2004] VSC 343; Metricon Homes Pty Ltd v Sawyer [2013] VSC 518; NCON Australia Ltd v Spotlight Pty Ltd [2014] VSC 25
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Twigg QC | Vadarlis & Associates |
| For the Defendant | Mr T Margetts QC | Wotton & Kearney |
HIS HONOUR:
1 The trial in this proceeding ran for two weeks in July 2016 before resuming for another four days in March 2017. I delivered reasons for judgment on 24 April 2018 (“the principal reasons”). At the time I gave judgment, I arranged for the relisting of the proceeding on 11 May 2018 to hear from the parties with respect to the final orders for substantive relief and costs. These reasons assume familiarity with the principal reasons and adopt the same terminology.
2 In the principal reasons, I summarised my conclusions with respect to the merits of the case in the following way:
(a)Tripodi retained SHC in 2012 to advise it about pre-emergent herbicides for the proposed borlotti bean crop. The retainer included the provision of advice about how best to care for the crop and the provision of monitoring services to maintain and safeguard the health of the crop.
(b)SHC had contractual obligations to Tripodi and owed it a duty of care to provide advice and monitoring services which a reasonably competent agronomist would provide in the circumstances.
(c)SHC breached the retainer and its duty to Tripodi by:
(i)failing to provide appropriate advice about a pre-emergent herbicide to use on the beans;
(ii)failing to monitor properly the health of the beans; and
(iii)failing to recommend appropriate measures to safeguard and protect the health of the beans.
(d)There was no contract between Tripodi and Woolworths by which Woolworths agreed to purchase any quantity of borlotti beans from Tripodi, whether at any specific price or at all.
(e)Tripodi did not prove its loss arising from the breach of contract and breach of duty. The evidence did not make good all the assumptions made by Tripodi’s experts.
(f)Tripodi’s claim was for loss of opportunity. Even if the plaintiff’s evidence had been satisfactory, after making due allowance for the possibilities and probabilities which might flow in accordance with Sellars’ case, any damages awarded under this head would have been discounted by 85%. If it had been argued, I would have further reduced the plaintiff’s damages for Tripodi’s contributory negligence in planting the bean crop after being warned, albeit shortly before planting, that it was sensible to conduct a test planting using Mentor.
(g)SHC acknowledged that, contrary to its principal submissions, if it were liable at all to Tripodi, it was for the moneys wasted by Tripodi in duplicating work by replanting two of the failed borlotti bean plantings.
3 Given the reservations attaching to the defendant’s calculation of $44,495, I awarded Tripodi $40,000 damages.
4 When the parties returned to argue about the final orders and costs, there were a number of issues to be dealt with. I address each in turn.
Was the plaintiff entitled to any interest?
5 SHC argued that Tripodi should not receive any interest upon the $40,000 damages awarded to it. In summary, SHC contended there were three reasons justifying this approach. First, SHC referred to the final paragraph of the principal reasons in which I said that I would hear from the parties on the question of costs and the form of final orders. SHC submitted that, by inference, I intended to convey that Tripodi was not entitled to any interest, or alternatively, if it were, interest had been included in assessing Tripodi’s damages at $40,000.
6 Secondly, it was said that because the amount of $40,000 was awarded to Tripodi as damages and not a debt, no allowance should be made for interest.
7 Finally, SHC submitted that because the plaintiff was unsuccessful and failed on its substantive case, the court, in the exercise of its discretion, ought not award any interest.
8 I reject the submissions put by SHC. To the extent that the final paragraph of the judgment did not refer expressly to interest, there was no intent to convey that either interest had already been included in the damages awarded or that no interest should be payable. Rather, interest was one of the matters which was to be addressed in making the final orders.
9 In this context, it does not seem to me to matter whether the $40,000 is awarded as damages or as debt. The operation of section 60 of the Supreme Court Act 1986 (Vic) (“Supreme Court Act”) (to which I will refer later in greater detail) is such that there is no relevant distinction as regards the entitlement to interest. I consider that Tripodi should recover interest on its damages from when proceedings issued.
10 As to SHC’s final argument, Tripodi sued SHC for breach of contract and negligence, and claimed damages in excess of approximately $4.2 million. Ultimately, I awarded Tripodi $40,000 which was less than 1% of the amount claimed. SHC submitted that although an award had been made, the court, in arriving at a damages figure, had relied upon evidence from the defendant rather than the plaintiff. Accordingly, SHC contended, in effect, that Tripodi had substantially failed in the case which it had run. While I accept that the particular circumstances of the case might have some relevance to the discretion with respect to the award of costs, I do not consider the same level of discretion exists with respect to the recovery of interest.
11 Section 60(1) of the Supreme Court Act gives the Court the power to award pre-judgment interest on damages, stating:
“The Court, on application in any proceeding for the recovery of debt or damages, must, unless good cause is shown to the contrary, give damages in the nature of interest at such rate not exceeding the rate for the time being fixed under section 2 of the Penalty Interest Rates Act 1983 as it thinks fit from the commencement of the proceeding to the date of the judgment over and above the debt or damages awarded”.
12 Thus, interest should be awarded from the commencement of the proceeding for damages until the date of judgment unless “good cause” is shown.
13 I accept that in exercising the court’s discretion to award damages in the nature of interest under section 60(1), the following principles apply:
(a)The power to refuse an award of interest is to be used to relieve injustice against the unsuccessful defendant, rather than a tool for penalising the successful plaintiff.[1]
(b)The purposes of the statutory power to award interest are:[2]
(i)to compensate a plaintiff for the loss or detriment which he or she has suffered by being kept out of his or her money and deprived of its use during the relevant period; and
(ii)to encourage the early resolution of litigation.
[1]Hodgson v Amcor Ltd (No 9) [2012] VSC 205 at [14] per Vickery J.
[2]Hosking v Ipex Software Services Pty Ltd (No 2) [2004] VSC 343 at [6].
14 In my view, what constitutes good cause will depend on the particular facts of the case and it is unwise to put any gloss on the expression.[3] The defendant bears the onus of showing that there is good cause. Good cause should be measured against the purposes of the statutory power identified by Habersberger J in Hosking v Ipex Software Services Pty Ltd (No 2).[4]
[3]Clarke v Foodland Stores Pty Ltd [1993] 2 VR 382, 394 per Fullagar, Marks and JD Phillips JJ.
[4][2004] VSC 343 at [6].
15 SHC’s principal argument appeared to be that making various settlement offers, either in the form of Calderbank letters or pursuant to Order 26 of the County Court Civil Procedure Rules2008 (Vic) (“the Rules”) constituted good cause. In particular, SHC relied upon an offer of compromise served upon Tripodi on 23 September 2015.
16 In my view, the service of an offer of compromise in and of itself is insufficient to constitute “good cause” within the meaning of the Supreme Court Act. Nor, it seems to me, are there any other additional factors in this case which, individually or collectively, might constitute sufficient good cause not to award interest.
17 Accordingly, pursuant to section 50 of the County Court Act 1958 (Vic), which incorporates by reference section 60 of the Supreme Court Act, the figure awarded for interest on the damages is $19,113.97. SHC proposed this figure on the basis that the court rejected its other substantive submissions on the point. Tripodi did not take issue with the proposed figure.
Should Tripodi pay SHC’s costs from 25 September 2015?
18 SHC contended that Tripodi should pay SHC’s costs after 11am on 25 September 2015 because Tripodi rejected an offer of compromise served by SHC on 23 September 2015. The offer of compromise was served pursuant to Order 26 of the Rules. The offer was accompanied by a Calderbank letter which set out SHC’s reasons for making the offer. Pursuant to the terms of the offer, SHC agreed to compromise Tripodi’s claim by paying it $250,000 inclusive of interest and costs. The offer was available to be accepted until the expiration of 14 days after service.
19 Rule 26.08(3) of the Rules sets out the cost consequences upon a plaintiff failing to accept a defendant’s offer of compromise where the plaintiff ultimately receives a judgment that is not more favourable than the compromise offer made. It states:
“Where an offer of compromise is made by a defendant and not accepted by the plaintiff, and the plaintiff obtains a judgment on the claim to which the offer relates not more favourable to the plaintiff than the terms of the offer, then, unless the Court otherwise orders—
(a)the plaintiff shall be entitled to an order against the defendant for the plaintiff’s costs in respect of the claim before 11.00 a.m. on the second business day after the offer was served, taxed on the ordinarily applicable basis; and
(b)the defendant shall be entitled to an order against the plaintiff for the defendant’s costs in respect of the claim thereafter taxed on the ordinarily applicable basis.”
20 Because SHC’s offer was expressed to be inclusive of interest and costs, as permitted by Rule 26.02(4)(a), those amounts need to be subtracted from the $250,000 offered as at the date of the offer in order to determine whether Tripodi has received a judgment that is not more favourable than the compromise offer.
21 Having regard to the amount I have determined as interest payable to Tripodi, it means that the total amount of the judgment sum and interest to be received by Tripodi is $59,113.97. When this amount is deducted from the compromise offer of $250,000, Tripodi would need to have incurred recoverable costs of $190,886.03 as at 23 September 2015 in order to properly contend that the decision of the court was more favourable than the SHC offer.
22 SHC submitted that the court should safely conclude that Tripodi’s recoverable costs before 23 September 2015 did not exceed $190,886.03. It contended that, if Tripodi asserted that its recoverable costs exceeded that amount, it should produce the solicitor’s file for assessment by the Costs Court.
23 For its part, Tripodi argued that the onus lay upon SHC to establish that its offer of compromise was effective in accordance with the Rules and, accordingly, it was the responsibility of SHC to prove the quantum of costs. Tripodi argued that it was under no obligation to produce bills of costs or any other documentation which set out the costs incurred up to the date the offer of compromise was served.
24 The question of costs incurred by Tripodi in this case at September 2015 is important because of its potential impact in connection with the offer of compromise. To a degree, the offer was more akin to many Calderbank offers which are frequently “all in” and thereby include an amount for costs. There was a suggestion in this case that if I were not prepared to accept the assertion by SHC that Tripodi’s recoverable costs at the time of the offer were less than $190,000, then I could refer the matter to the Costs Court for assessment before deciding upon the effect of the compromise offer. I indicated to the parties in court that delaying the resolution of the case for a further lengthy period was an unattractive option which did not serve the interests of the parties or the court. The proceeding was issued in 2013 and concerns events from an earlier time. The overarching purpose of the Civil Procedure Act 2010 (Vic) which governs civil litigation is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute. The court is to give effect to that purpose in exercising its powers. I consider that incurring further substantial expense in conducting a taxation and delaying the resolution of the case for a further lengthy period is inconsistent with the overarching purpose.
25 I have no expertise in matters of professional costs. On occasion, I am surprised to learn the costs claimed by lawyers in connection with a piece of litigation. Sometimes the legal costs appear to be disproportionately large and bear little relationship either to the quality of the work or the progress of the litigation. In the circumstances, I am not prepared to speculate about possible costs and guess what Tripodi’s recoverable costs might have been at the relevant time.
26 While it is correct to say that Tripodi would know or be able to work out its recoverable costs as at September 2015, the question whether the court should force Tripodi to provide such information is a difficult one.
27 Here, SHC did no more than make an assertion about Tripodi’s costs. SHC filed no evidence from an experienced solicitor or other expert about the likely quantum of costs. Nor did SHC try to subpoena relevant bills or other financial information from Tripodi. In circumstances where SHC has not taken reasonable steps readily available to it in order to establish its argument, I do not consider it appropriate to make a presumption against Tripodi or order Tripodi to produce documents. The onus is on SHC to establish the necessary facts in order for the provisions of Order 26 to operate in its favour.
28 I was unable to locate any authority directly on point regarding this aspect of Order 26. However, the decision of Garde J in Metricon Homes Pty Ltd v Sawyer,[5] is of some assistance. There, His Honour said that where a party is seeking to rely on a statutory offer of compromise, that party bears the onus of proving that the outcome was not more favourable than the figure offered.
[5][2013] VSC 518.
29 In that case, Garde J was asked to determine whether the Victorian Civil and Administration Tribunal had erred in finding that an owner was not required to respond to a builder’s application for production of relevant accounts for legal and expert fees, so that the tribunal could determine whether an “all in” offer made under section 112 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (“the VCAT Act”) was more or less favourable than the outcome achieved by the owner in the primary dispute.[6]
[6]I accept that this legislation is not in identical terms to Order 26.
30 His Honour found that, because the builder was seeking to assert the benefit of its settlement offers (which were expressed to be both Calderbank offers as well as settlement offers pursuant to the VCAT Act),[7] it bore the onus of demonstrating that the outcome of the case was not more favourable than the offer made:[8]
“In the present case, if the builder was to assert the benefit of its settlement offers, it was for it to demonstrate that s 112 of the VCAT Act was engaged. This required satisfying the Tribunal that each of the conditions listed in s 112(1)(a) to (d) was satisfied. It was for the builder to show that the Tribunal should have been of the opinion that the orders made by the Tribunal in the proceeding were not more favourable to the owners than the offer.
The Tribunal was correct when it held that it was for the builder to demonstrate that the conditions required for s 112 had been satisfied. As the Tribunal said, it was for the builder to show that, after taking into account any order for costs that would have been made, the outcome of the case was not more favourable to the offeree than the offer.”
[7][2013] VSC 518 at [4].
[8][2013] VSC 518 at [64]–[65].
31 I note that, had SHC sought production of Tripodi’s bills of costs or any other documentation setting out the costs incurred up to the date the offer was served, I would have entertained such an application in order to enable SHC to discharge its evidentiary onus. In saying this, I acknowledge that there may have been objections by Tripodi regarding legal professional privilege which arguably attached to such documents.
32 I further note that in the New South Wales Court of Appeal decision of Elite Protective Personnel Pty Ltd v Salmon,[9] Basten JA referred to the disadvantage which can befall an all-inclusive Calderbank offer where the litigation proceeds to judgment. His Honour said:[10]
“The disadvantage of an inclusive offer lies with the defendant if the matter proceeds to judgment. Where the judgment is equal to or above the inclusive figure, the defendant will have failed to better its own offer. However, if the judgment is below the offer there may be uncertainty because the offer included an unquantified element for costs incurred up to the time when it lapsed or was rejected. No doubt the figure for costs incurred to that time by the plaintiff could be resolved by some form of assessment, but if the calculation of the damages component is not clearly seen to provide a figure above the judgment, then the interests of justice will usually not be served by incurring further expense in assessing the costs element of an offer and the plaintiff would be entitled to his or her costs…”
[9][2007] NSWCA 322.
[10][2007] NSWCA 322 at [144].
33 While I accept that the legislative provisions in New South Wales are different from Order 26, the above dicta nonetheless reflect the risk run by parties who seek to rely on an “all in” offer – that is, the risk that they may face difficulties in proving the other party’s costs incurred at the time of the offer, and thus demonstrating that the offer was more favourable than the outcome received at trial.
34 Thus, in a substantial piece of litigation like this, I consider an offer has greater clarity and generates less confusion and uncertainty if it is made exclusive of costs. Because of the inherent uncertainty of the costs in this case, and notwithstanding that Tripodi’s recoverable costs at the time of the offer might have been less than $190,000, in my view Tripodi should not pay SHC’s costs from the time of the offer. SHC has not done enough to show that Order 26 should operate in its favour in this case.
Should Tripodi recover any of its costs?
35 SHC argued with respect to Tripodi’s major claims that the court found:
(a)there was no contract with Woolworths for the sale of any quantity of borlotti beans such that Tripodi was not entitled to any damages for that claim; and
(b)while Tripodi had established the existence of an opportunity of some value, it had failed to prove the facts upon which its expert gave evidence as to loss, so that it was not possible to award Tripodi any damages for the claim.
36 SHC contended that the damages which the court awarded Tripodi did not follow directly from any claim which Tripodi advanced in the proceeding. Tripodi itself did not lead any direct evidence of replanting costs. Rather, the court relied upon the evidence of SHC’s expert in arriving at a damages award. But for that evidence, the court found that Tripodi would have been limited to nominal damages on its contract claim.
37 SHC referred to the decision of the Victorian Court of Appeal in Chen v Chan,[11] where the court summarised the principles to be applied in exercising the court’s discretion with respect to costs where a plaintiff was only partly successful. The court said:[12]
[11][2009] VSCA 233.
[12]Ibid at [10].
“(1)The general rule is that costs should follow the event. Absent disqualifying conduct, the successful party should recover its costs even where it has not succeeded on all heads of claim.
(2)The Rules of Court permit significant flexibility in determining questions of costs. In particular, the Court is entitled to examine the realities of the case and will attempt to do ‘substantial justice’ as between the parties on matters of costs.
(3)Where there is a multiplicity of issues and mixed success has been enjoyed by the parties, a Court may take a pragmatic approach in framing the order for costs, taking into consideration the success (or lack of success) of the parties on an issues basis. Generally, if such an order is made, it is reflected in the successful party being awarded a proportion of its costs but not the full amount.
(4)A Court may, when fixing costs in a claim where there has been mixed success, take into account complications which it considers will arise in the taxation of costs, as part of its consideration of the overall interests of justice.
(5)Where a Court determines to make an order apportioning costs, then it does so primarily as ‘a matter of impression and evaluation,’ rather than with arithmetical precision, having considered the importance of the matters upon which the parties have been successful or unsuccessful, the time occupied and the ambit of the submissions made, as well as any other relevant matter.”
38 Hargrave J applied the same principles in Braham v Stephan (No 2).[13] In that case, the plaintiff failed to establish an entitlement to any of the relief sought in the originating motion. However, because the plaintiff had established a breach of a lease by the defendant, it was awarded minimal damages for that breach. Hargrave J considered that the plaintiff should pay a substantial proportion of the defendant’s costs of the proceeding because they had wholly failed to obtain the relief they sought and had been granted an indulgence to claim damages after completion of the hearing. The court ordered the plaintiffs pay 70% of the defendant’s costs of the proceeding. This figure was arrived at on the basis that although the defendant won the substantial issues in dispute, it was necessary to make some allowance for the plaintiff’s costs in proving the breach of lease and related submissions.
[13][2015] VSC 87 at [18].
39 SHC contended that the present facts were similar to Braham’s case because Tripodi failed wholly to establish an entitlement to any of the relief which it claimed, notwithstanding that it was granted leave to amend its claim at the conclusion of the initial hearing, and therefore had the opportunity to amend before the trial resumed the following year. Further, Tripodi was awarded only a small fraction of the damages which it claimed.
40 In Law of Costs, Dal Pont says that where a litigant succeeds in a case not on any merits of his or her own but on a technicality, it is open to the court to make no order in favour of that litigant.[14] On the basis of this authority, SHC contended that it was open for the court, in exercising its discretion as to costs, to make no order in Tripodi’s favour as a result of its substantial failure on the merits. SHC relied in part on the decision of Robson J in NCON Australia Ltd v Spotlight Pty Ltd,[15] where His Honour said that the courts have consistently held that where a party sues for damages based on an alleged breach of contract, that person is not viewed as the successful party if it succeeds in establishing the contract and the breach, but fails to prove any damage flowing from the breach. The authorities have established that a plaintiff who wins only nominal damages is usually not recognised as the successful party.
[14]G E Dal Pont, Law of Costs (LexisNexis, 3rd ed, 2013) at [8.43].
[15][2014] VSC 25.
41 SHC also made reference to Rule 63A.24 of the Rules. In substance, this provision says that where, in a proceeding for debt or damages the plaintiff recovers an amount not exceeding $50,000 (being half the jurisdictional limit of the Magistrates’ Court in civil proceedings), the plaintiff shall, unless the Court otherwise orders, be entitled only to the costs which it would have been entitled to had it brought the proceeding in the Magistrates’ Court. From this sum is to be deducted the additional costs properly incurred by the defendant by reason of the proceeding being brought in the County Court rather than the Magistrates’ Court. However, the plaintiff is not required to pay the defendant any amount by which the extra costs exceed the costs payable to the plaintiff.
42 As to this latter submission, I am satisfied that the court should “otherwise order” within the terms of Rule 63A.24. Courts have identified various factors which can be taken into account in determining how to exercise the discretion about costs in this context. They include:[16]
[16]Dal Pont, Law of Costs at [12.15].
· the amount claimed and the reasons for this;
· the amount actually recovered and the reasons for this;
· the difficulty or otherwise of assessing the likely damages awarded;
· the complexity or otherwise of the case, factually and/or legally;
· the nature of the proceedings in question and how this impacts, if at all, upon the need to proceed in the higher or specialist court; and
· the conduct and attitude of the parties to the litigation.
43 The amount claimed in this case was significant. Due largely to problems in Tripodi’s proofs, the amount recovered was small. Indeed, even if Tripodi had led better evidence, I would have substantially reduced the damages to reflect the possibilities and probabilities affecting the value of the opportunity lost. There was considerable argument about the appropriate measure of damages and how they should be assessed. In this and in other respects, the facts of the case and aspects of the applicable law were extensive, complicated and hotly disputed. I am satisfied that this litigation was appropriately brought within this court even if, in the final analysis, the amount of damages fell within the jurisdiction of the Magistrates’ Court.
44 In my view, the interests of justice are best served by Tripodi recovering its costs from SHC. Even if Tripodi did not enjoy substantial success in its claim for damages, this was due mainly to Tripodi’s failure to prove matters within its knowledge and control. It was not due to the evidence adduced by SHC or to SHC’s submissions on critical points of fact or law.[17] As a result, in a hard fought case where Tripodi won the majority of the important issues, it should recover its costs, to be taxed on a standard basis on the County Court scale in default of agreement.
[17]I rejected SHC’s case on most of the significant issues.
Who should recover the costs reserved on 30 March 2015?
45 SHC submitted that it should recover the costs reserved on 30 March 2015 when I made orders by consent granting leave to Tripodi to file and serve an amended statement of claim.
46 The order was made in the following circumstances. On 6 March 2015, SHC’s solicitors received an email from the plaintiff’s solicitors attaching a proposed amended statement of claim which Tripodi sought to rely upon. The purpose of the amendments was to add various allegations: namely, that SHC had been engaged by Tripodi to provide general advice in relation to the health and wellbeing of the crop, not merely advice in relation to pre-emergent herbicides; SHC failed to advise Tripodi of the risk posed by the summer death virus; and SHC failed to properly monitor the borlotti bean crop for the presence of the summer death virus or for the insect which transmitted the virus.
47 On 16 March 2015, SHC’s solicitors emailed the plaintiff’s solicitors indicating that SHC would consent to the proposed application to amend subject to the trial, which was currently scheduled for 15 April 2015, being vacated. Tripodi agreed to SHC’s terms, and the court ordered that the trial be vacated.
48 Tripodi argued that, at trial, it was successful with respect to the allegations added to the statement of claim by way of the amendment. I inferred from this that Tripodi submitted that it should recover the reserved costs in the usual way.
49 In my opinion, the circumstances of the amendment were such that I do not consider it appropriate for Tripodi to recover those reserved costs. Tripodi sought and was granted an indulgence to amend its claim in circumstances where the trial, which was scheduled to commence in approximately 2‑3 weeks, was vacated. Because the amendment enabled Tripodi to raise additional issues which SHC then had to address and the trial was adjourned, I consider that SHC should recover any costs reserved arising from that adjournment.
Conclusion
50 For the reasons set out, I conclude that:
(a)Tripodi should recover interest on its damages;
(b)Tripodi should not pay SHC’s costs from 25 September 2015 but should recover its costs to be taxed on a standard basis on the County Court scale;
(c)SHC should recover the costs reserved on 30 March 2015 when Tripodi applied to amend its statement of claim.
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