Miglas and Kinson v SM Developments Pty Ltd

[2010] VCC 69

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
COMMERCIAL LIST

BUILDING CASES DIVISION

Case No. CI-08-05743

ANATOL MIGLAS & DEBORAH JOY KINSON	Plaintiffs
v
SM DEVELOPMENTS PTY LTD	Defendant

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JUDGE:	HIS HONOUR JUDGE ANDERSON
WHERE HELD:	Melbourne
DATE OF HEARING:	5 February 2010
DATE OF JUDGMENT:	18 March 2010
CASE MAY BE CITED AS:	Miglas & Kinson v SM Developments Pty Ltd
MEDIUM NEUTRAL CITATION:	[2010] VCC 0069

REASONS FOR JUDGMENT

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Catchwords:  Practice and procedure – Form of judgment – Specific performance
generally not appropriate – Rectification works to be carried out on the
adjoining property after giving notice – Whether order should be made
for indemnity costs – Certification of counsels’ fees.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr I. Percy	Tony Kelly
For the Defendant	Mr A. Donald	Mahons with Yuncken and Yuncken
HIS HONOUR:

1           When I delivered judgment in this matter on 4 November 2009, I indicated that before making formal orders I would give the parties the opportunity to seek agreement about how the proposed rectification works would be carried out.

2           As a consequence of discussions between the parties and further submissions made to the Court on 5 February 2010, I determined the form of orders which were appropriate and generally determined questions of costs. There remained an issue about the certification of counsels’ fees and I have received written submissions from the parties which have enabled me to reach conclusions about those matters.

3           As a consequence of my judgment delivered 4 November 2009, I considered that in order to complete its obligations pursuant to the terms of settlement the parties signed on 8 May 2006, the defendant should be required to specifically perform certain further work. However, this was not a straightforward matter as generally the works were to be performed at or very near to the boundary between the plaintiffs’ property and the defendant’s property and the dispute I had determined had arisen because of delays in the completion of the agreed work by the defendant and alleged difficulties obtaining access to the work site.

4 define the works to be performed, this did not happen and in the circumstances I
made orders on 5 February 2010 confining the order for specific performance to
limited and more easily defined works which the defendant was to carry out on its

Notwithstanding my suggestion that the parties should try to reach agreement to two properties, where access to perform the works would primarily be from the plaintiffs’ property, I considered that it would be inappropriate to require the defendant to perform these works.

5           There was no agreement about the scope of the works and, although some of the rectification work would involve work on the defendant’s land, in my view it was more appropriate for the plaintiffs to carry out the work and for the plaintiffs to receive an award of damages as a result of the defendant’s previous failure to carry out that work. As the works would partly be performed on the defendant’s land, I made provision in the order for the plaintiffs to give notice of the precise works required and any further works that the plaintiffs considered appropriate to complete at the same time. I provided a mechanism to resolve any disputes by returning to court if the defendant was unhappy with what was proposed by the plaintiffs.

6           In relation to the question of costs, the plaintiffs sought an order for indemnity costs on two bases, firstly, as certain offers of compromise had been made and secondly, because of the conduct of the defendant in the proceeding. I considered that party-party costs were more appropriate. The offers of compromise either were not sufficiently clear in their terms or included matters in respect of which the plaintiffs were ultimately unsuccessful. Further, although the action arose out of the defendant’s failure to perform its obligations pursuant to terms of settlement of other litigation, and the defendant’s conduct of the present litigation involved some breaches of directions orders and the late amendment of pleadings, I did not consider that it was a case appropriate for an order for indemnity costs to be made. I did, however, indicate that when certifying counsels’ fees, as far as possible, the plaintiffs’ costs of the hearing should be reasonably and adequately compensated for.

7           The parties have both addressed extensive written submissions about counsels’ fees. I consider, in general terms, that the proceeding is one which the plaintiffs had no option but to bring in order to enforce their rights. The defendant’s performance of its obligations pursuant to the terms of settlement had been unsatisfactory and the assertions included in a late amendment to the defence and counterclaim, blaming delays and increased costs on the plaintiffs, had no merit. However, the trial itself was conducted by both parties efficiently and the expert witnesses cooperated to resolve matters within their expertise.

8           The plaintiffs engaged two counsel. I consider that this was justified in the particular circumstances, including the late amendment of the pleadings and the delivery of an expert’s report out of time. The plaintiffs were faced with the alternatives of seeking an adjournment of the trial in order to prepare to meet the matters raised or to

increase the resources available in order to deal with the matters “on the run”. the trial and later in respect of the disputes I determined on 5 February 2010.

9           The plaintiffs modified the claims in respect of the amounts at which they asked for counsels’ fees to be certified. In my view, the revised fees are appropriate. Accordingly, I will grant the following certificates:

a	certify the two counsel;
b	certify leading counsel’s brief fee at $3,750 per day inclusive of GST with two days trial preparation and seven days for the hearing, one day preparation for the hearing on 5 February 2010 and one day for the hearing that day and one further day for the preparation of written submissions in relation to questions

of costs;

c	for junior counsel, a brief fee of $1,850 per day, inclusive of GST, with one day preparation for the trial and 4.5 days of hearing and 10 hours of special conferences at $200 per hour;
d	for counsel to hear judgment on 4 November 2009, fixed at $750.

10         I have allowed junior counsel a daily brief fee for each of 21, 22, 23 and 26 October and a half day on 29 October. I have allowed 10 hours of special conferences for specific discussions with witnesses on 24, 25, 27 and 28 October.

11         I will reserve liberty to apply in case there are costs properly incurred by the plaintiffs which I have neglected to take account of in my consideration of this matter.

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Certificate

I certify that these 4 pages are a true copy of the reasons for decision of His Honour Judge

Anderson delivered on 18 March 2010.

Dated: 18 March 2010

Caroline Dawes

Associate to His Honour Judge Anderson