Mayart Pty Ltd v Knight

[2020] VCC 1613

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMERCIAL DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CI-18-04868

MAYART PTY LTD and ORS	Plaintiffs
v
PHILIPPA CHRISTINE KNIGHT and ORS	Defendants

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JUDGE:	HIS HONOUR JUDGE COSGRAVE
WHERE HELD:	Melbourne
DATE OF HEARING:	5 October 2020
DATE OF RULING:	12 October 2020
CASE MAY BE CITED AS:	Mayart Pty Ltd & Ors v Knight & Ors
MEDIUM NEUTRAL CITATION:	[2020] VCC 1613

REASONS FOR RULING

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Dr M Wolff	Noble Lawyers Pty Ltd
For the First Defendant	Mr M J Galvin
For the Third Defendant	The third defendant appeared in person

HIS HONOUR:

1       The plaintiffs applied for summary judgment against the first defendant and third defendant.  I dismissed the application, and the first defendant has applied for costs.  Being self-represented, the third defendant is not able to recover a costs order in his favour.

2       Frequently on an unsuccessful summary judgment application by a plaintiff, the costs are ordered to be “costs in the cause” so that the party which ultimately prevails in the litigation can recover the costs of the application.  This is usually a fair outcome because, in order to defeat the application, it is enough for a defendant to show that it has an arguable defence on a question of fact or law - that is, one that has real, as opposed to fanciful, prospects of success.

3       In the present case, the plaintiffs’ material failed to reach the threshold whereby the plaintiff at least verifies and proves by admissible evidence the essential elements of its cause of action against the responding defendant.  Due to the failure to satisfy the requirements of Order 22, the first defendant did not need to establish a defence with real prospects. However, given the unusual circumstances of this case, I was most unlikely to have granted the plaintiffs’ application in any event because I consider that, even if the first defendant had no real prospects of success, it was in the interests of justice that there be a trial. This was a case in which a full hearing on the merits was appropriate.

4       The first defendant seeks an order for costs because the plaintiffs’ application failed. While there is a proper basis for the first defendant’s claim, it seems to me that the broader context renders it reasonable to make the more usual costs order in this case, namely, that costs be in the cause. The first defendant has not been as active in the case as the third defendant whom I understand is, or was, her husband. It appears from some of the first defendant’s submissions and conduct that she has relied upon the work of the third defendant in material respects. The plaintiffs’ summary judgment application was made in a context where two other applications were being dealt with on the same day. Given the extremely complicated nature of this litigation, I consider that it is just for the costs of the application to be awarded to the party who succeeds at the trial scheduled for next month.

5       Accordingly, I make the following orders

(a)  the plaintiff’s summons filed 9 June 2020 be dismissed;

(b)  the costs of and incidental to the plaintiff’s summons be costs in the cause.