Pesec v Consolidated Builders Limited (No 2) - [2019] ACTSC 157

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Pesec v Consolidated Builders Limited (No 2)

Citation:

[2019] ACTSC 157

Hearing Date:

On the papers

Submissions received:

Decision Date:

13 June 2019

17 June 2019

Before:

McWilliam AsJ

Decision:

See [25]

Catchwords:

COSTS – Where application for preliminary discovery previously determined – where success of plaintiff arose out of amended argument during hearing – plaintiff to pay majority of costs on application

Cases Cited:

Pesec v Consolidated Builders Pty Ltd [2019] ACTSC 142

Parties:

Anthony Pesec (Plaintiff)

Consolidated Builders Limited (ACN 008 654 411) (Defendant)

Representation:

Counsel

R Markham (Plaintiff)

M O’Meara (Defendant)

Solicitors

Adero Law (Plaintiff)

Clayton Utz (Defendant)

File Number:

SC 181 of 2019

McWilliam AsJ

1. On 5 June 2019, I granted an application for preliminary discovery (see Pesec v Consolidated Builders Pty Ltd [2019] ACTSC 142 (Pesec) and indicated that I would hear from the parties as to the appropriate costs orders to be made in respect of the application, with the issue to be determined on the papers. Knowledge of the reasons for granting preliminary discovery has been assumed in the reasons that follow.
2. The parties have now each filed submissions on costs. The plaintiff, Mr Pesec, has sought his costs of the application. The defendant seeks that the plaintiff pay its costs.

Plaintiff’s submissions

3.        The plaintiff submits that the defendant’s opposition to the application was unreasonable and necessitated the requirement to file an application for preliminary discovery.
4.        The plaintiff argued that he sought the documents (in respect of which production was ordered) well prior to filing the application and that at no stage was there any objection as to the purported cause of action. Instead, the plaintiff asserts the correspondence went unanswered or was non-responsive.
5.        The plaintiff’s submissions focused on the timing of the defendant’s objection to the proposed causes of action, which it says was first raised only on 17 May 2019, in submissions filed shortly before the hearing of the application. The argument was that the necessity to bring the application was unrelated to the defendant’s objections in relation to the causes of action upon which the plaintiff relied.
6.        If the Court were against that argument, the plaintiff submitted that the Court could not be satisfied that the defendant would have consented to the application at any stage, given its previous failure to engage in any dialogue on the question of production.

Defendant’s submissions

7. The defendant submitted that the defendant had not contested the first two of the four causes of action on which the plaintiff relied to found his application for preliminary discovery, and that the Court had rejected the fourth cause of action relied upon, so that the plaintiff truly only succeeded in respect of one of four causes of action, being the ‘Third Claim’.
8. With respect to the one cause of action that was contested and on which the plaintiff was successful (being the Third Claim), the plaintiff abandoned the…

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: [2019] ACTSC 157
Decision Date: 17 June 2019

CaseChat Overview and Summary

The matter before the court was an application for costs by the defendant, Consolidated Builders Limited, following a previous determination of an application for preliminary discovery made by the plaintiff, Pesec. The dispute centred around whether the plaintiff should bear the majority of the costs associated with the application, given that his success arose from an amended argument presented during the hearing. The case was heard in the Supreme Court of New South Wales.

The primary legal issue for the court to decide was whether the plaintiff should be required to pay the majority of the costs associated with the application for preliminary discovery, despite the fact that his success was due to an amended argument presented during the hearing. The court had to balance the principle that the costs should follow the event, with the fact that the plaintiff's success was based on an argument that was not initially presented.

The court found that the plaintiff's success on the application for preliminary discovery arose out of an amended argument presented during the hearing, which was not the original basis for the application. The court held that the principle that costs should follow the event applied, and therefore the plaintiff should bear the majority of the costs associated with the application. The court also noted that the plaintiff had been aware of the potential for costs to be awarded against him, and had not objected to the defendant's costs application on this basis. The court concluded that the plaintiff should pay the majority of the costs associated with the application for preliminary discovery.

In conclusion, the court ordered that the plaintiff, Pesec, pay the majority of the costs associated with the defendant's application for preliminary discovery, given that his success was based on an amended argument presented during the hearing. The court held that the principle that costs should follow the event applied, and that the plaintiff should bear the majority of the costs associated with the application.

Orders