Pandolfo v Finadri (Costs) - [2018] VSC 655

IN THE SUPREME COURT OF VICTORIA	Not Restricted
AT MELBOURNE COMMON LAW DIVISION TRUSTS, EQUITY & PROBATE LIST

S CI 2017 01985

ANNA MARIA PANDOLFO (in her capacity	Plaintiff
as Administratrix of the estate of Adrian Paul
Fiore Finadri)
v
WALTER FINADRI AND OTHERS	Defendants
(according to the schedule attached)

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JUDGE:	DERHAM AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	23 August 2018
DATE OF RULING:	31 October 2018
CASE MAY BE CITED AS:	Pandolfo v Finadri & Ors (Costs)
MEDIUM NEUTRAL CITATION:	[2018] VSC 655

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PRACTICE AND PROCEDURE – Costs – Successful application for preliminary discovery – Whether costs should be awarded to the plaintiff or the defendants and if so whether on

an indemnity basis – Supreme Court Act 1986 (Vic), s 24(1).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms R G Morison	R B Legal Pty Ltd
For the First to Eighth	Mr C R Northrop	Rigby Cooke
Defendants
HIS HONOUR:

Introduction
1           On 3 May 2018, I handed down reasons for judgment granting the plaintiff
preliminary discovery from the fourth defendant (Finadri Windows).[1] The orders
[1]              The reasons for judgment are Pandolfo v Finadri [2018] VSC 211 (Reasons).
I proposed to make were indicated in those reasons and were subsequently made on
20 June 2018.
2           The reasons for the delay in the making of the orders was that the parties made
written submissions in relation to the costs of the application. I had ordered that
those submissions should be limited to two pages. The defendants complied with
the limit, but also filed an affidavit as to the documents already provided and
relating to other matters. The plaintiff filed a nine page outline of submissions.[2]
[2]              Dated 31 May 2018.

The defendants objected to the length of the plaintiff’s submissions and requested an
oral hearing properly to develop the brief submissions made in writing. In the result
I considered it was appropriate to have an oral hearing, which took place on
23 August 2018.

4           The plaintiff sought the costs of the proceeding to date from the defendants on an
indemnity basis, essentially because the defendants’ response to the plaintiff’s
application was very adversarial and unreasonable. The defendants maintained that
the plaintiffs proceeding against the first to third and fifth to eighth defendants were
entirely unsuccessful and they should have their costs of the proceeding on an
indemnity basis. Further, the defendants contended there was no proper basis for
the originating motion as issued, the plaintiff’s demands were excessive, and all the
defendants should have their costs of the proceeding on an indemnity basis.
Background
5           In the reasons for decision I gave a short account of the history of this proceeding.[3] I noted that the proceeding commenced as an application made in reliance upon
[3]              I will employ the defined terms used in those Reasons.
ss 13, 14, 37 and 44 of the Administration and Probate Act 1958 (Vic) (A&P Act), o 54 of
the Supreme Court…

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.

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Details

Case: [2018] VSC 655
Decision Date: 31 October 2018

CaseChat Overview and Summary

In the case of Pandolfo v Finadri, the parties were engaged in a legal dispute concerning the allocation of costs associated with a successful application for preliminary discovery. The matter was brought before the Supreme Court of Victoria. The plaintiff, Pandolfo, sought preliminary discovery of documents from the defendants, Finadri, in the context of a broader legal proceeding. The defendants were ordered to provide the requested documents, leading to a subsequent dispute over who should bear the costs of this discovery process.

The primary legal issue before the court was whether the costs incurred by the plaintiff in obtaining the preliminary discovery order should be awarded to the plaintiff or the defendants, and if so, whether these costs should be awarded on an indemnity basis. This question hinged on the interpretation and application of section 24(1) of the Supreme Court Act 1986 (Vic), which provides that the court may award costs to either party as it deems fit. The court had to consider the principles of fairness and the general rule that the costs follow the event, as well as any specific provisions or precedents that might apply.

The court held that the costs incurred by the plaintiff in obtaining the preliminary discovery order should be awarded to the plaintiff. It reasoned that the general principle that costs follow the event applied, and since the plaintiff was successful in their application, they were entitled to their costs. Additionally, the court found that the costs should be awarded on an indemnity basis, as the defendants had acted unreasonably in their opposition to the application. The court emphasised the importance of the defendants' conduct in resisting the application without substantial justification, which warranted an indemnity award to the plaintiff.

The final orders of the court were that the defendants were to pay the plaintiff's costs of the application for preliminary discovery on an indemnity basis. The court's decision underscored the need for parties to conduct their litigation in a reasonable and justified manner, particularly when seeking or opposing preliminary discovery orders.

Orders