Murray v Wylie (No 2)

[2017] VCC 1587

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMERCIAL DIVISION
GENERAL LIST

Revised
Not Restricted
Suitable for Publication

Case No. CI-17-01671

JONATHAN ST QUINTON MURRAY & ANOR	Plaintiffs
v
JOHN WYLIE & ORS	Defendants

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JUDGE:	HIS HONOUR JUDGE COSGRAVE
WHERE HELD:	Melbourne
DATE OF HEARING:	11 October 2017
DATE OF RULING:	3 November 2017
CASE MAY BE CITED AS:	Murray & Anor v Wylie & Ors (No 2)
MEDIUM NEUTRAL CITATION:	[2017] VCC 1587

REASONS FOR RULING

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Legislation Cited:     Civil Procedure Act 2010 (Vic)

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr H Forrester	Slater & Gordon Lawyers
For the Defendants	Mr A Rollnik	Minter Ellison

HIS HONOUR:

1       I gave judgment in this matter on 23 October 2017.  I ordered the plaintiff to file and serve material but otherwise dismissed the defendants’ summons.  I indicated that, subject to hearing from the parties, I proposed to make certain orders including an order that the plaintiffs pay 50% of the defendants’ costs of and incidental to the application.

2       On about 25 October 2017 the plaintiff filed further submissions arguing for an order that costs be in the cause.  The defendants advised that they were content with the proposed orders.

3       In effect the plaintiffs contended that costs should be in the cause because the plaintiffs defeated the defendants’ application for summary judgment and/or striking out of the statement of claim.  The plaintiffs submitted that:

(a)      the court found their construction of the documents in question was arguable and, in any case, the matter should proceed to a full hearing;

(b)      there was no basis for the plaintiffs to provide better particulars;

(c)      the case management orders proposed assisted both parties and the court and the burden of such orders should not fall upon the plaintiffs.

4       In short, while I found that the defendants’ application for summary judgment should fail, the plaintiffs were not co-operative in providing clarity regarding the case they sought to run against the defendants.  The Civil Procedure Act 2010 (Vic) requires co-operation between parties and a change in the way that litigation is to be conducted compared to former times. Had the plaintiffs acted differently, there would have been no need for me to make the orders I did regarding the construction argument. In my opinion, the argument is not something which emerged clearly from the statement of claim.

5       Hence, my view is that while the defendants overreached themselves in seeking summary judgment, they were vindicated in reasonably seeking clarity regarding the case to be met.  The proposed orders were an alternative to striking out parts of the claim and/or requiring the plaintiffs to provide details of their case. 

6       Accordingly, I make the following orders:

(a)     within 21 days, the plaintiffs file and serve upon the defendants a written statement addressing:

(i)     the documents which it is alleged in paragraph 10 of the Statement of Claim the defendants were required to enter into;

(ii)     the basis for the allegation in paragraph 11 of the Statement of Claim that the defendants were jointly obliged with Sherpa to pay certain amounts to the plaintiffs;

(iii)    the basis for the allegation in paragraph 13 of the Statement of Claim that the email from Hive Legal to Arnold Bloch Leibler dated 21 July 2016 was sent on behalf of the defendants;

(iv)    the basis for the allegation in paragraph 14 of the Statement of Claim that the defendants were obliged to:

(A)    enter into the Second Settlement Deed;

(B)    pay $450,000 to Murray;

(C)    take steps to effect payment of $50,000 to Olsen for its shares in Sherpa;

(D)    take steps to effect the transfer of the shares in Sherpa;

(E)    pay or take steps to effect the payment of cash entitlements owed to Murray under the First Settlement Deed.

(b)      within 21 days, the plaintiffs file and serve upon the defendants a document setting out the substance of the interpretation or construction argument which the plaintiffs advance against the defendants;

(c)      within 21 days of receipt of the plaintiffs’ document, the defendants file and serve a responsive document setting out the substance of the interpretation or construction argument which they seek to advance;

(d)      the defendants’ summons is otherwise dismissed;

(e)      the plaintiffs pay 50 per cent of the defendants’ costs of and incidental to this application.