Pesec v Consolidated Builders Ltd (No 5) - [2021] ACTSC 225

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Pesec v Consolidated Builders Ltd (No 5)
Citation:	[2021] ACTSC 225
Hearing Date:	3 September 2021
DecisionDate:	9 September 2021
Before:	McWilliam AJ
Decision:	See [55]
Catchwords:	PRACTICE AND PROCEDURE – COSTS – application to vary costs order made in relation to preliminary discovery proceedings – whether unreasonable conduct in failing to discover documents – whether correspondence of a company director revealed financial information that was not discovered – whether inference able to be drawn that defendant failed to comply with obligations to discover documents
Legislation Cited:	Corporations Act 2001 (Cth) ss 236, 237 Court Procedures Rules 2006 (ACT) rr 674, 651, 1835
Cases Cited:	Ebos Group Pty Ltd v Team Medical Supplies Pty Ltd (No 3) [2012] FCA 48; 199 FCR 533 ED Oates Pty Ltd v Edgar Edmondson Imports [2012] FCA 356 Graham v Aluma-Lite Pty Ltd (New South Wales Court of Appeal), Mason P, Priestley and Cole JJA, 25 March 1997 Massouras v Kone Elevators Pty Ltd (No 2) [2020] ACTSC 181 Pesec v Consolidated Builders Ltd [2019] ACTSC 142 Pesec v Consolidated Builders Limited (No 2) [2019] ACTSC 157 Pesec v Consolidated Builders Ltd (No 3) [2021] ACTSC 105 Pesec v Consolidated Builders Ltd (No 4) [2021] ACTSC 188 Quach v Butt [2017] ACTCA 4 The Queen v Barbaro (1992) 106 FLR 387
Parties:	Anthony Pesec ( Plaintiff) Consolidated Builders Limited ( Defendant)
Representation:	Counsel R Markham ( Plaintiff) M O’Meara SC ( Defendant)
Solicitors Adero Law ( Plaintiff) Clayton Utz ( Defendant)
File Number:	SC 179 of 2020

McWilliam AJ:

The proceeding before the Court is the latest in a series of disputes between the plaintiff, Mr Anthony Pesec, and the defendant, Consolidated Builders Ltd (CBL). It concerns an attempt by the plaintiff to revisit liability for the legal costs of a dispute that was litigated more than two years ago and have since been assessed.

On 5 June 2019, I determined an application for preliminary discovery brought by the plaintiff: Pesec v Consolidated Builders Ltd [2019] ACTSC 142 (Pesec (No 1)). Orders were made for preliminary discovery by CBL of certain documents, in the following terms (emphasis added):

(1) Upon the undertaking of the plaintiff that the documents and the information in them will not be used for any purpose other than the investigation and consideration of the potential causes of action in respect of which the discovery has been obtained and will only be disclosed to the plaintiff, his legal advisers and any experts retained in connection with that purpose, the defendant is to discover the following documents:
(a) Any resolution or minute recording the grant of each of Options 1-11 as defined in the application dated 12 April 2019, or the exercise of an Option by the Board of Directors of Consolidated BuildersLimited (Board).
(b) Any accountancy report or other financial information considered by the Board relating to the Option in question, including but…

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: [2021] ACTSC 225
Decision Date

CaseChat Overview and Summary

This case involves a series of legal disputes between Mr. Anthony Pesec and Consolidated Builders Limited (CBL). The plaintiff seeks to revisit the liability for legal costs related to a dispute that was decided more than two years ago and has since been assessed. The plaintiff argues that the defendant failed to comply with orders for preliminary discovery, and thus seeks to set aside a historical costs order and have the defendant pay the plaintiff's party/party costs of the preliminary discovery proceedings and the present application. The Court considered the plaintiff's arguments and found that there was no basis to revisit the costs orders made previously. The Court found that the email exchange between the defendant's director and the defendant's solicitor did not disclose any non-compliance by CBL with the orders for discovery. Furthermore, the Court found that the plaintiff's grievances were directed to a later point in time, being CBL's asserted non-compliance with the discovery orders, which did not give rise to a right to overturn an earlier costs order. The Court also found that any lack of production had no significance at trial, as the plaintiff succeeded in the subsequent proceeding on the very issue that was the cause of him seeking production of documents. Therefore, the Court dismissed the plaintiff's application and ordered that the defendant file and serve any submission on costs of the application on or before 16 September 2021, and the plaintiff file and serve any reply submission on or before 23 September 2021. The issue of costs of the application is to be determined on the papers, unless either party seeks a further oral hearing.

Orders