Pesec v Consolidated Builders Ltd (No 5)

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.