Premier Building and Consulting Pty Ltd v Spotless Group Ltd (No 7)

[2005] VSC 275

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

BUILDING CASES LIST

No. 8264 of 2003

PREMIER BUILDING & CONSULTING PTY LTD (ACN 066 568 367)	Plaintiff
v
SPOTLESS GROUP LIMITED (ACN 004 376 514) and OTHERS	Defendants

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JUDGE:	BYRNE J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 August 2005
DATE OF JUDGMENT:	1 September 2005
CASE MAY BE CITED AS:	Premier Building & Consulting Pty Ltd v Spotless Group Ltd (No 7)
MEDIUM NEUTRAL CITATION:	[2005] VSC 275

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PRACTICE and PROCEDURE – Security for costs – amount of security

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr N Pane	Baker & McKenzie
For the Defendants 1st, 3rd, and 9th Defendants (Spotless Parties)	Mr T J P Walker	Freehills
For the 5th Defendant (Keen Planning)	Mr D Aghion	Deacons
For the 7th Defendant (Kilpatrick & Associates)	Mr A Pound	Slater & Gordon

HIS HONOUR:

1. Premier has sued ten defendants in this proceeding and four respondents in an associated proceeding in the VCAT.  In terms of their representation, these ten defendants represent eight groups of parties.  On 18 February 2005 I ordered that Premier provide security for costs of the proceeding in the Court up to and including mediation as follows:

Spotless Parties[1]	$ 401,500[2]
North Suburban	$ 85,000
Collie Planning	$123,500
Keen Planning	$74,000
Moreland City Council	$85,500
Kirkpatrick	$80,000
McMullin	$145,000

[1]Spotless Group Ltd, Ensign Services (Aust) Pty Ltd, but not including Spotless Services Ltd which was not added as a party until 17 December 2004.

[2]As amended on 17 March 2005

1. The mediation was completed on or about 29 April 2005 and the parties are pressing on to trial which is fixed to commence on 2 October 2006.

1. The defendants now seek further security for costs up to and including Day 1 of the trial.  These further applications have been resolved in respect of three of the defendants which have agreed upon the security to be provided.  These are Collie Planning[3], McMullin[4] and Moreland Council. Mackenzie makes no claim.  The applications which require my decision, therefore, are those of the Spotless Parties, North Suburban, Keen Planning and Kilpatrick & Associates.

   [3]A further $224,960

   [4]A further $220,000

1. With consent of the parties I prepared a tentative assessment of the security to be provided in each case.  This was done on the basis of extensive written submissions made by each of the applicants and Premier.  I distributed my tentative assessment on 8 August 2005, reserving to any party the right to call for a hearing where it may present oral argument in support of a different figure.  This was done; I heard argument on 17 August. In this judgment I have revisited my assessment in the light of the arguments presented to me, and generally, so that the amounts for security which I now assess represent the amounts which I consider should properly be provided for the defendants concerned.

1. In making this assessment, I proceed on the basis of the principles which I set out in my February judgment.[5]  Having regard to the work which is the subject of the present applications, I make the following further general observations.

   [5][2005] VSC 19

(1)My concern is to assess the costs of each of the applicant defendants which have been incurred and are to be incurred from the mediation up to and including Day 1 of the trial.  Notwithstanding this, the delays which have beset the earlier applications have meant that certain costs, which were not expected at the time when the evidence and submissions for those applications were presented, but which were incurred before the mediation took place, were not included in the February assessments.  I refer to the costs associated with the further discovery lists produced by Premier since October 2004.  I have, nevertheless, included them in these assessments.

(2)The onus of proving that the work was or will be done within the period and its reasonable cost on a party and party basis falls upon the applicant in each case.

(3)The aggregate of the amounts sought by the defendants is, on the face of it, enormous.  This is, to some extent, the product of the decision of Premier to sue ten defendants rather than discriminating between all candidates.  This is its forensic choice and it must abide the consequences of it.

(4)In making my assessments I have had regard to what I perceive at this stage to be the issues and the respective positions of the parties in the proceeding which I have been managing now for some 12 months.

(5)I have not and will not, for the purposes of these applications, descend into the detail of the work done and to be done by the defendants to prepare for trial.  My task is not that of a Taxing Master confronted with a bill of costs; it is to make an estimate of what, in the light of the evidence before me and in the light of my familiarity with the case,  is a fair amount to achieve to objective of an order for security.  This not to provide a defendant with an indemnity for the expenses of defending the claims against it, but to provide it with protection against the risk that an order for party and party costs in its favour might not be satisfied.

(6)Having regard to the foregoing, I will not be troubled by any inconsistencies between my treatment of items in these applications and that for items in the earlier applications.  I am undertaking nothing in the nature of a final determination of the costs to which the applicants might be entitled after a favourable judgment has been obtained.  I have sought, nevertheless to be consistent as between the various claims although this has not been entirely possible given the differing approaches adopted by different parties.

(7)A substantial component of the costs estimates in these applications is that of obtaining experts’ reports.  I have not made any order limiting the number of expert witnesses which may be called by any party, but it may be that the conduct of the defences can and should be satisfactorily achieved by the sharing of witnesses whose reports, after all, have been made available to all parties.  I am mindful, too, that much of the expert investigation which has been undertaken, particularly by Premier and the Spotless Parties, may be required and may be used for purposes other than for their claims against each other in this litigation.[6]

[6]I have not ordered  that security be provided  in the VCAT proceeding.   Security will not be ordered with respect to costs incurred in satisfying the requirements of the EPA or in prosecuting or defending claims between defendants. 

(8)The second substantial costs component is that of the inspection of discovered documents.  I am sensitive to the possibility that the costs of this item may be uncertain given the generality of the evidence offered by the applicants in support.

(9)I will allow six directions hearings.

(10)I will allow ten days preparation for trial.

(11)I will allow for no more than two counsel at trial.

(12)I allow $6,000 per day for senior counsel for preparation and trial and $2,000 for junior counsel.

(13)I will allow $5.26 per page for copying and analysing expert witness statements and $1.78 for lay witness statements.

(14)For the reasons set out in para [10] below, I will allow $2.712 per folio for perusing and scanning documents produced upon discovery or subpoena.

(15)No order for electronic trial has been made and the parties do not appear to have agreed to conduct the trial electronically.  Unless there is an order or some such agreement,  I will not allow the costs which might be incurred in preparing an electronic database.

(16)Generally speaking, I have not looked into an item where the Premier accepts the amount claimed.

1. Spotless Parties’ Claims

Head of cost	Existing security	Amount sought by Spotless Parties	Amount allowed by Premier	Court allows
1.  Review of Third Further Amended Statement of Claim and further and better particulars	$0	$10,137.90	$0	Nil[7]
2.  Spotless Parties’ defence	$0	$10,102.50	$0	Nil
3.  Other defendants’ defences	$0	$2,655	$0	Nil
4.  Statement of Claim and Defence – Keen and McKenzie	$0	$1,412	$0	Nil
5.  Reply	$0	$1,950	$0	Nil
6.  Premier’s supplementary discovery	$0	$465,617.45 (including copying costs)	$5,014 (including copying costs)	$175,113 [8]
7.  North Suburban’s supplementary discovery	$0	$1,602.77 (including copying costs)	$1,220 (including copying costs)	$883 [9]
8.  MCC’s supplementary discovery	$0	$30,690.27 (including copying costs)	$0	$13,602 [10]
9.  Kilpatrick’s supplementary discovery	$0	$17,100 (including copying costs)	$0	$11,000 [11]
10.  Spotless Parties’ supplementary discovery	$0	$5,815 (including copying costs)	$0	Nil
11.  Premier’s subpoenae	$0	$61,770 adjusted to $75,004 (including copying costs)	$12,720 (including copying costs)	$20,000 [12]
12.  Kilpatrick’s subpoenae	$0	$4,928 (including copying costs)	$0	$2,670 [13]
13.  Keen’s subpoenae	$0	$21,939 adjusted to $26,328 (including copying costs)	$5,475 (including copying costs)	$6,424 [14]

[7]I will not allow costs which are already payable. Items 1 to 5, as costs thrown away by reason of an amendment, are recoverable from the amending party: R63.17.

[8]See para [10] below.

[9]158 pages, 316 folios = $857 plus copying $26.07 = $883

[10]6 folders, 4800 folios = $13,018 plus copying $584.87 = $13,602

[11]5 folders, 4000 folios = $10,848 plus copying

[12]This is to, a large degree, speculative.  Allowing for 7.8 folders as per Mr Weingart, 6250 folios @ $2.712 = $16,950.   I allow $20,000.

[13]1 folder, 800 folios = $2,170 plus $500 copying

[14]2.5 folders, 2000 folios =  $5,424 plus $1,000 copying

14.  Spotless Parties’ subpoenae	$0	$175,539.40  adjusted to $131,859.40 (including copying costs)	$36,232 (including copying costs)	$39,412 [15]
15.  Directions’ hearings	$0	$31,935	$28,880	$31,932 [16]
16.  Premier’s expert witnesses	$0	$74,992	$23,141	$23,144 [17]
17.  Premier’s lay witnesses	$0	$26,540	$0	5,000 [18]
18.  McMullin’s expert environmental witness	$0	$1,694	$0	$684 [19]
19.  North Suburban’s expert witness	$0	$14,240	$0	$6,312 [20]
20.  Defendants’ lay witnesses	$0	$79,020	$0	$6,230 [21]
21.  Spotless Parties’ expert witnesses	$0	$1,680,913.95 ($1,190,913.95 [22] already incurred and $490,000 future)	$250,000	$500,000 [23]
22.  Spotless Parties’ lay witnesses	$0	$53,100	$0	$50,000 [24]
23.  New documents to be added to database	$0	$109,478 adjusted to $104,113	$0	Nil [25]
24.  New documents to be added to chronological set	$0	$41,068 adjusted to $39,056	$0	Nil [26]
25.  Preparation for trial	$0	$368,100[27]	$259,500	$260,000[28]
TOTAL	$0	$3,291,800.10 adjusted to $3,258,366.10	$622,182 (including copying costs)	$1,152,406

[15]15.4 folders, 12,320 folios = $33,412 plus $6,000 copying

[16]This represents $5,322 per hearing including senior counsel, junior counsel, instructing solicitor and transcript for six directions hearings.  This is more or less consistent with the claims of the other parties, allowing for the fact that it is reasonable for the Spotless parties to have two counsel at all directions hearings.

[17]11 folders, 4,400 pages.  Copying and analysing @ $5.26 = $23,144

[18]7 folders, 2,800 pages.  Copying and analysing @ $1.78 =  $5,000

[19]130 pages.  Copying and analysing @ $5.26 = $684

[20]3 folders, 1200 pages.  Copying and analysing @ $5.26 =  $6,312

[21]Seven defendants lay witnesses should occupy 3,500 pages.  Copying and analysing @ $1.78  per page on average = $6,230

[22]No details provided of the work done.

[23]Deduction made for work done otherwise then for defending Premier claim.

[24]Five folders, 2,000 pages.  Ms Lincoln estimates 80 hours for counsel and a similar number of hour for 2 solicitors.   I accept this and allow $50,000

[25]The parties have not accepted that the trial be conducted as an electronic trial.  Accordingly, this item is disallowed.

[26]This is a matter for the use only of the Spotless Parties.

[27]No details provided

[28]Includes 10 days preparation and day 1 of trial but not witnesses, which are included in item 21.

1. The Spotless Parties seek no less than $520,825.49  for items 6 to 10.  They, therefore, warrant particular attention.  The evidence offered in support of this very substantial sum is sparse indeed.  It seems that Premier has provided four supplementary lists of documents since October 2004.  From the material before me, most of which has been provided by Premier, the detail and volume of this further discovery is as follows:

List #	Date	Folios
5	24 Nov 2004	32,375
6	18 Feb 2005	5,600
7	7 March 2005	23,000
8	16 May 2005	1,600
Total	62,575

1. Apart from a very general statement that the Spotless Parties do not hold security for the work of inspecting these documents, it does not appear whether the inspection was done before or after the mediation and, if before, whether it was covered by the earlier order.  Photocopying costs total $5,408.75.  Accepting that 80% of the discovered material (50,060 folios) warranted perusal at $3.70 per folio, the cost of this is $185,222 and 20% (12,515 folios) scanned at $1.23 per folio is $15,393  On that basis, a figure of about $210,000 for this item may be justified on the evidence offered by the Spotless Parties.  It does not appear how the remaining $250,000 is made up.

1. Ariel Weingart, the costs consultant engaged by Premier offers a critique of the Spotless Parties material, concluding that a figure of the order of $58,183 plus photocopying costs may be recoverable on taxation.  The principal point of difference between his assessment and that offered by on behalf of the Spotless Parties is that he would have only 10,958 folios perused and the balance of 38,777 folios scanned.  At the same rates, the costs for this would be $40,545 for perusals and $47,696, a total of $88,241.  Add to this the copying charges and the items would be costed at $93,650.

1. I have not seen the documents and cannot assess the number of folios per page or which of them warrant perusal.  It is clear, however, on the evidence before me that the very large sum claimed by the Spotless Parties is not justified.   From the description of the documents I am inclined to prefer a figure very much less than that based on 80% perusal.  I will allow 60%.  This means that the amount allowed is $175,113, calculated as follows:  37,545 folios @ $3.70 = $138,917, plus 25,030 folios @ $1.23 = $30, 787, plus  $5,409 for copying. For present purposes this means that the cost per folio for 60% perusal and 40% scanning  is $2.712.  I shall adopt this figure generally as being the best estimate of party and party costs for this work on the evidence which has been offered.

1. North Suburban

Letter from Gavin Wood, Grace Consultants Pty Ltd to Blake Dawson Waldron dated 30 may 2005			Comments of Ariel Weingart	Court allows
Professional Charges:
1.          Application for security for Costs including instructions, all communications and perusals, briefing costs consultant, filing and service of application, preparation of affidavit(s) of solicitor and cost consultant in support, brief to Junior Counsel to appear photocopying, attending Court with Counsel on hearing of application, checking transcript, perusing order and service thereof and reporting	$	3,500.00	This is an interlocutory application and not part of the substantive action and therefore should not be included in calculating security for costs;  a separate costs order will be provided; this is further recognized by Byrne J in his judgement 18/2/5 paragraph (3).	Nil [29]
2.          Second Defendant's Defence including instructions to defend, perusing Further Amended Statement of Claim, preparing and attending to file and serve, instructions for Second Defendant's Defence, conferences with Second Defendant's representatives, preparing Second Defence, briefing Senior and Junior Counsel to settle, copying, filing and service, perusals of Defences prepared by other Defendants, making copies, attending Counsel and Second Defendant's representatives therewith and discussing same	$	5,500.00	This has occurred due to the amendment of pleadings, and more correctly falls under SCR 63.17, and should not form part of the security for costs claim.	Nil
3.          Perusing Request for Further and Better Particulars of the Amended Statement of Claim and subsequent Further and Better Particulars provided, making copies, attending Second Defendant's representatives and Counsel therewith and discussing same	$	2,750.00	This has occurred due to the amendment of pleadings, and more correctly falls under SCR 63.17, and should not form part of the security for costs claim.	Nil
4.          Perusing any replies prepared on behalf of the Plaintiff, making copies thereof, attending Counsel and Second Defendant's representatives therewith and discussing same	$	1,500.00	This has occurred due to the amendment of pleadings, and more correctly falls under SCR 63.17, and should not form part of the security for costs claim.	Nil
5.          Interrogatories and Answers to Interrogatories between the Plaintiff and Second Defendant and between the Second Defendant and other Defendants including instructions for Interrogatories, brief to Senior and Junior Counsel to prepare and/or settle, preparing and attending to file and serve, conferences with Second Defendant's representatives, perusal of Answers to Interrogatories and Interrogatories of other Defendants, making copies, attending Second Defendant's representatives therewith and discussing same	$	7,500.00	I refer to the affidavit of Anne Moon.  I understand that there will not be Interrogatories; they have not been ordered to date and are unlikely to be ordered in the future	Nil [30]
6.       Mutual discovery between the Plaintiff and all Defendants including consideration of approximately 8,000 to 10,000 documents including subpoenas, attending obtaining documents produced pursuant to subpoenas, making copies, attending obtaining all discoverable material, conferences with Second Defendant's representatives, exchange of Affidavits of Documents and of selected documents between parties' solicitors, communications as to inadequacy of parties' discovery, arranging and attending inspection, perusal of all discovered material, copies, instructions on Junior Counsel to review database, filing and service	$	592,000.00	In the affidavit of Robert Revealey Wyld sworn 8/10/4  para (f) he sought $42,320 for assessing discovery (which included reviewing discoverable documents discovered by all defendants (estimated at 10,000 docs), LTG paralegal team to review and collate all documents and create database and reviewing database with junior counsel) .  The second defendant is now requesting security for mutual discovery of a further 10,000 documents but at 14 times the cost claimed for the same number of documents eight months ago. Therefore this request is totally out of proportion with the previous request. There is not enough particularity to be able to ascertain how the figure requested has been obtained. On the assumption that each of the 10,000 documents contains 5 folios, and each was to be perused, the amount due to a defendant would be $185,000.  If all 10,000 documents were copied at 15c/page(which I understand to be the agreed rate) the further amount due to a defendant would be $1,500. One way of comparing this figure is to look at an estimated total cost for the review of all documents discovered in the proceeding to date.  This is approximately $190,681.  This is calculated as follows.  Prior to the application for security for costs, approximately 16170 documents had been discovered, and 3338 subpoena.  After the applications there has been further discovery of  2150 documents (plus boxes) to mediation and a further 253 since mediation.  There have been further 2453 (plus further boxes) documents produced pursuant to subpoenas prior to mediation and a further (say) 4000 documents since mediation.  Say each documents is five folios in length on average.  In total there are 92,865 folios of discovered documents.  Allow one-third as perusal = 30,955 folios = $114,533 and two-third as being scanned at one-third of the perusal rate i.e. 61,909 folios x 1.23 per folio = $76,148.  Therefore total for all discovery = $190,681. The total review of all subpoenaed documents produced in the proceeding to date is approximately 6,600.  This is calculated as follows:  allow examination only, say 20 hours @ $220.00 per hour = $4,400.00.  Other time spent involving the exercise of skill or legal knowledge, say 10 hours @ $220.00 per hour = $2,200.00 Ten letters - $290.00 Ten clerical attendances - $330.00 Total = $197,901.00	$200,000 [31]
7.          Advice of Junior Counsel on substantive issues including all communications, brief to Counsel and copies, perusing advice and advising Second Defendant's representatives	$	500.00	$500
8.          Six (6) directions hearings including instructions, all communications and perusals, brief to Junior Counsel to appear at six (6) directions hearings, brief to Senior Counsel to appear at two (2) directions hearings, photocopying, attending Court instructing Counsel, checking transcripts, perusing order and service thereof and reporting	$	5,000.00	allow 4 directions hearings	20,000[32]
9.          Instructions from three (3) lay witnesses including conferences with witnesses, provision of copy documents, conferences with Senior and Junior Counsel and witnesses, instructions for witness statements, brief to Senior and Junior Counsel to settle same, preparation and service thereof	$	9,000.00	In accordance with principle 9 of the Judgement of Byrne J of 18 December 2004, I have not included these anticipated costs, there presently being no order for lay witness statement	5,000

[29]I will not allow costs which are already payable. Items 1 - 4, as costs thrown away by reason of an amendment, are recoverable from the amending party: R63.17.

[30]It is not likely that interrogatories will be permitted.

[31]I accept the Grace estimate of 12 folios per document.  10,000 documents, 120,000 folios @ $2.712 = $325,440. My perception of the position of this party in the litigation is such that it would not require to incur costs of this item at the same rate as the Spotless Parties.  I will therefore allow $200,000 only.

[32]I have allowed 6 directions hearings.  Two hearings with senior and junior counsel @ $5,322 as to which, see fn 16 above.  Four hearings with junior counsel alone @ $2,322.  The total of $19,932 has been rounded off.

10.        Instructions from three (3) expert witnesses including conferences with expert witnesses, provision of copy documents, perusal of reports, conferences with Senior and Junior Counsel and expert witnesses, instructions for witness statements, brief to Senior and Junior Counsel to settle same preparation and service thereof	$	10,000.00	There is no indication as to the length of these witness statements and I am therefore unable to comment on the amount claimed. Ordinarily, an amount would be allowed but further information is required before an assessment can be made.	Nil[33]
11.        Preparation for trial including briefs to Senior and Junior Counsel to appear, copy documents for Counsel's briefs (claim one third of all discoverable documents being between 2,500 to 3,500 documents photocopies once only for both Counsel), consultation with Counsel, expert and lay witnesses and Second Defendant's representatives, attending other parties' solicitors and any further callovers, preparation and perusal of evidence, Chronologies, Notices to Admit and Notices of Objection, Notice to Produce, checking and consulting as to Plaintiff's Court Book and arranging expert and lay witness to attend trial	$	65,000.00	65,000
Total Professional Costs:	$	702,250.00	290,500
Disbursements:
Application for Security of Costs	This is an interlocutory application and not part of the substantive action and therefore should not be included in calculating security for costs;  a separate costs order will be provided; this is further recognized by Byrne J in his judgement 18 February 2005 paragraph (3).
12.        Fee on application		$	282.00	Nil [34]

[33]Included in item 21.

[34]The costs of this application will be dealt with upon the making of the order.  Accordingly they will not be part of the order for security.  Items 12 -15 are disallowed.

13.        Junior Counsel's fee including advice, conferring, settling affidavits and appearing on application		$	3,500.00	Nil
14.        Transcript of application		$	800.00	Nil
15.        Cost consultant's fees in support of application		$	1,200.00	Nil
16.        Preparation and settling Second Defendant's Defence
–           Senior Counsel		$	1,800.00	This has occurred due to the amendment of pleadings, and more correctly falls under SCR 63.17, and should not form part of the security for costs claim.	Nil [35]
–           Junior Counsel		$	2,400.00	This has occurred due to the amendment of pleadings, and more correctly falls under SCR 63.17, and should not form part of the security for costs claim.	Nil
17.        Senior Counsel's fee for appearing at two (2) further directions – commercial matter – 2 each @ $2,500.00		$	5,000.00	Nil[36]
18.        Junior Counsel's fee for appearing at six (6) further directions – commercial matter – 6 each @ $1,000.00		$	6,000.00	I am instructed that there will be four further directions hearings.	Nil
19.        Junior Counsel's fee to review replies filed by the Plaintiff, reviewing request for Further and Better Particulars of Defences and reviewing discovery database – including in preparation for trial fees		Nil
Preparation for Trial
20.        Three (3) lay witnesses to provide instructions for witness statements including discussions with instructing solicitor and Counsel	$	1,500.00	Lay witnesses are usually not allowed fees other than to attend Court	1,500
21.       Two (2) experts to assess alleged contamination and one (1) accounting expert to assess damages including all work done to qualify to give evidence such as preparing reports and discussions with instructing solicitor and Counsel – assuming an average attendance of one (1) assistant principal at $262.00 per hour for 70 hours and the principal at $262.00 per hour for 35 hours being a total of $27,510.00 per expert – 3 each @ $27,510.00	$	82,530.00	40,000 [37]
22.        Conferences with Second Defendant's representatives instructing solicitors, Junior Counsel and lay and expert witnesses and preparing Court documents – 3 days @ $6,000.00 – Senior Counsel	$	18,000.00	Reduce Senior Counsel’s fees to $5,500.00 per day	Nil [38]
23.        Conferences with Second Defendant's representatives instructing solicitor, Senior Counsel and lay expert witnesses and preparing Court documents –10 days @ $2,000.00 – Junior Counsel	$	20,000.00	Nil
24.        Brief to appear – Senior Counsel – 10 days preparation (less 1 day being part of daily brief fee) – 9 days @ $6,000.00	54,000.00	The amount claimed is excessive.  Allow at 5,500.00 per day	66,000 [39]
25.        Brief to appear – Junior Counsel – 23 days preparation (less 1 day being part of daily brief fee) – 22 days @ $2,000.00	$	44,000.00	The amount claimed is excessive.  Allow 10 days @ $2,000.00 per day	22,000 [40]
Total Professional Costs:	$	241,012.00	Total Disbursements	129,500
Total Costs and Disbursements:	$	943,262.00	$420,000

[35]I will not allow costs which are already payable. Items 16 and 19, as costs thrown away by reason of an amendment, are recoverable from the amending party: R63.17.

[36]This item and item18 are included the allowance for item 8

[37]The amount claimed has been reduced because the expert will have the benefit of the reports of other expert with similar interests.

[38]This item and item 23 are included in items 24 and 25.

[39]Ten days preparation plus Day 1 of the trial at $6,000. 

[40]Ten days preparation plus Day 1 of the trial at $2,000.

1. Keen Planning

Summary of item (refer to Exhibit "JW2" for detail)	Amount claimed by Keen	Amount allowed by Premier	Court allows
1	Perusal of second further amended writ and relevant parts of third further amended statement of claim (320 folios approximately)	$1,030	$0	Nil [41]
2	Perusal of Premier's updated particulars of loss and damage and annexures	$110	$0	Nil
3	Defence to Premier's third amended statement of claim.	$11,625	$0	Nil
4	Perusal of Spotless Group & Ensign's defence to the Premier's third further amended statement of claim	$35	$0	Nil [42]
5	Perusal of Spotless Services' defence to Premier's third further amended statement of claim	$35	$0	Nil
6	Perusal of North's defence to Premier's third further amended statement of claim	$35	$0	Nil
7	Perusal of Collie's defence to Premier's third further amended statement of claim	$35	$0	Nil
8	Perusal of Council's defence to Premier's third further amended statement of claim	$35	$0	Nil
9	Perusal of Kilpatrick's defence to Premier's third further amended statement of claim	$35	$0	Nil
10	Perusal of McMullin's defence to Premier's third further amended statement of claim	$35	$0	Nil
11	Perusal of Premier' third further amended writ and relevant parts of Premier's fourth further amended statement of claim (allow scale charged in item 25 of Supreme Court Scale) and scanning remainder (370 folios approximately)	$975	$0	Nil
12	Perusal of McKenzie's defence to Premier's fourth further amended statement of claim	$0	$0	Nil
13	Perusal of Premier's reply to the Spotless Group & Ensign defences to Premier's third further amended statement of claim	$35	$0	Nil
14	Perusal of Premier's reply to North's defence to Premier's third further amended statement of claim	$35	$0	Nil
15	Perusal of Premier's reply to Collie's defence to Premier's third further amended statement of claim	$35	$0	Nil
16	Perusal of plaintiff's reply to Council's defence to Premier's third further amended statement of claim	$35	$0	Nil
17	Perusal of Premier's reply to Kilpatrick's defence to Premier's third further amended statement of claim	$35	$0	Nil
18	Perusal of Premier's reply to McMullin's defence of Premier's third further amended statement of claim	$35	$0	Nil
19	Perusal of Premier's reply to McKenzie's defence to Premier's fourth further amended statement of claim	$0	$0	Nil
20	Instructions for Keen's statement of claim against McKenzie	$13,960	$0	Nil
21	Perusal of McKenzie's defence to Keen's statement of claim	$35	$0	Nil
22	Reply to defence of McKenzie to Keen's statement of claim	$2,985	$0	Nil
23	Discovery & inspection of documents listed in Premier's 5th, 6th, & 7th affidavits of documents	$7,475	$0	7,475
24	Perusal of Premier's eighth affidavit of documents.	$1,525	$1,525	1,525
25	Perusal of Spotless Group & Ensign's further supplementary affidavit of documents sworn 27 September 2004	$1,675	$1,675	1,675
26	Perusal of North's further supplementary affidavit of documents sworn on 29 November 2004	$1,100	$1,100	1,100
27	Perusal of Council's affidavit of documents sworn 30 September 2004 and supplementary affidavit of documents sworn 1 March 2005	$2,375	$2,375	2,375
28	Perusal of Kilpatrick's affidavit of documents sworn 29 September 2004	$1,990	$1,990	1,990
29	Perusal of McMullin's affidavit of documents sworn 27 September 2004	$1,075	$1,075	1,075
30	Perusal of McKenzie's affidavit of documents	$1,500	$0	1,500
31	Application for further security	$7,250	$0	Nil [43]
32	Directions Hearing (4)	$25,000	$25,000	20,000[44]
33	Further advice of senior and junior counsel on evidence (necessary as a result of Premier's case as now pleaded against fifth named defendant)	$5,900	$0	Nil
34	Reasonable and necessary attendances and correspondence incurred throughout the conduct of matter to commencement of trial and being work not forming part of instructions for brief including general perusals and scanning of documents and correspondence, inspecting subpoenaed material (exceeding 5,000 pages), instructions for and drawing draft order 44 statement of expert witness and witness statement of lay witness, attending senior and junior counsel with instructions to settle draft order 44 statement and witness statement, appointing and attending consultations with senior and junior counsel when document settled, senior and junior counsel's fees for consultations and for settling draft order 44 statement and witness statement, engrossing order 44 statement and witness statement, copies, filing and service thereof, preparation of fifth named defendant's documents to include in court book, examination of plaintiff's court book (say 70 volumes) once served; arranging attendances of witnesses at trial, etc.	$40,000	$22,750	22,750
35	Instructions for brief including all attendances on and correspondence with Keen's representative; considering facts and law; interviewing and corresponding with witnesses; taking proofs of their evidence; arranging to take reports or advice from experts; making search in any public office or discovered elsewhere for relevant documents; perusing relevant documents and scanning remainder of documents not referred to elsewhere including perusal and scanning of Keen's discovered documents, perusal and scanning of relevant discovered documents obtained from each other party to this proceeding (set out in White 27/05/05 "JDW 2" item 35), general care and conduct and preparing the matter for trial.	$215,000	$130,000	200,000
36	Keen's subpoena for production of documents (5) (1,600 pages approximately) and perusing documents produced pursuant to subpoena (3,200 folios approximately)	$17,160	$4,375	9,478 [45]
37	Perusing Premier's subpoenae for production of documents (26 separate subpoena), including copying (6,000 pages approximately) and perusing documents produced pursuant to subpoena (12,000 folios approximately)	$56,285	$10,620	18,500 [46]
38	Perusal of Spotless Group, Ensign & Spotless Services' subpoena for production of documents (33 separate subpoena), including copying (26,000 pages approximately) and perusing documents produced pursuant to subpoena (52,000 folios approximately)	$213,175	$20,116	86,000 [47]
39	Perusal of Kilpatrick's subpoena for production of documents (6 separate subpoena), including copying (3,000 pages approximately) and perusing documents produced pursuant to subpoena (6,000 folios approximately)	$25,455	$0	9,600 [48]
40	Fees of expert town planner	$15,000	$15,000	15,000
41	Fees of expert forensic accountant	$30,000	$30,000	30,000
42	Fees of contamination expert	$40,000	$40,000	40,000
43	Attendance to search list at callover when trial date fixed	$0	$0
44	Creation of chronological set of all discovered and/or subpoenaed documents and indexing of those documents onto searchable electronic database - paralegal support group engaged a total of say 600 hours	$75,000	$0	Nil [49]
45	Preparation of briefs for senior and junior counsel to appear on trial.	$20,250	$20,250	20,250
46	Daily fees of senior counsel ($6,600) for 15 days of preparation	$99,000	$55,000	60,000 [50]
47	Daily fees of junior counsel ($3,300) for 15 days of preparation	$49,000	$27,500	20,000 [51]
48	Consultations with senior and junior counsel (3 days).	$33,000	$22,000	22,000 [52]
49	Fees of expert town planner to review file and attend consultations	$850	$850	850
50	Fees of expert forensic accountant to review file and attend consultations	$850	$850	850
51	Fees of contamination expert to review file and attend consultations	$850	$850	850
52	Attendance of solicitor on trial with counsel to instruct on the first day of the trial	$1,090	$0	1,090
53	Attendance of second instructing solicitor at trial to liaise with counsel and first instructing solicitor and obtaining and delivering further material required by counsel during course of the first day of the trial - allow 2 hours	$455	$0	455
54	Daily fee of senior counsel ($6,600) for appearance on first day of trial	$6,600	$5,500	6,000
55	Daily fee of junior counsel ($3,300) for appearance on first day of trial	$3,300	$2,750	2,000
56	Costs of transcript for first day of trial	$200	$200	200
TOTAL CLAIMED/ALLOWED:	$1,030,560	$443,351	$604,588

[41]I will not allow costs which are already payable. Items 1 to 3 and 33, as costs thrown away by reason of an amendment, are recoverable from the amending party: R63.17.

[42]This is not an expense in the proceeding between Premier and Keen Planning.  I will not allow Items  4 – 22 for this reason.

[43]The costs of this application will be dealt with upon the making of the order.  Accordingly they will not be part of the order for security.  Item 31 is disallowed.

[44]See fn 32 above.

[45]3,200 folios @ $2.712 = $8,678. No details of copying costs.  I allow $800.

[46]12,000 folios @ $2.712 = $32,544. My perception of the position of this party in the litigation is such that it would not require to incur costs of trial at the same rate as the Spotless Parties.  I will therefore allow 50%.  No details of copying costs.  I allow $2,000.

[47]52,000 folios @ $2.712 = $141,024. My perception of the position of this party in the litigation is such that it would not require to incur costs of trial at the same rate as the Spotless Parties.  I will therefore allow 50%.  No details of copying costs.  I allow $15,000.

[48]6,000 folios @ $2.712 = $16,272. My perception of the position of this party in the litigation is such that it would not require to incur costs of trial at the same rate as the Spotless Parties.  I will therefore allow 50%.  No details of copying costs.  I allow $1500.

[49]This is a matter for the use only of Keen planning.

[50]Ten days at $6,000 per day.

[51]Ten days at $2,000 per day

[52]Solicitor’s costs.

1. Kilpatrick & Associates

No.	Description	Kilpatrick amended claim for security	Weingart allowance	Court allows
1.	Perusing Premier’s Third Further Amended Statement of Claim	$8,250.00	$0 (see SCR63.17)	Nil [53]
2.	Perusing Premier’s Updated Particulars of Loss & Damage	$4,500.00	$0 (see SCR63.17)	Nil
3.	Preparation of Amended Defence	$11,625.00	$0 (see SCR63.17)	Nil
4.	Perusing other Defendants’ Amended Defence	$1,200.00	$0 (see SCR63.17)	Nil
5a.	Perusing Premier’s Reply to Kilpatricks’ Amended Defence and Premier’s Reply to other defendants’ Amended Defences	$1,200.00	$0 (not part of substantive action)	Nil
5.	Discovery and inspection of Premier’s documents	5th ,6th & 8th Affidavit of Documents - $31,439.00 7th Affidavit of Documents - $444,000.00 Total: $475,439.00	$5,000.00	20,000 [54]
6.	Discovery and inspection of Moreland City Council’s documents	$2,348.00	$0	2,348
7.	Discovery and inspection of Spotless Parties’ documents	$5,100.00	$0 (not yet incurred)	5,100
8.	Perusing Premier’s subpoenae (24), Keen’s subpoenae (5), Spotless parties’ further anticipated subpoenae (17)	$175,000.00	$55,584.00	56,000 [55]
12.	Photocopying costs for documents produced	$3,900.00	$3,900.00	3,900
13.	Creation of a database	$53,500.00	$0	Nil [56]
14.	Perusal of Premier’s expert witness statements	$65,000.00	$10,655.00	26,300 [57]

[53]I will not allow costs which are already payable. Items 1 to 5a, as costs thrown away by reason of an amendment, are recoverable from the amending party: R63.17.

[54]The original claim under this item was for $78,850 on the basis of 18 folders, i.e. 14,400 folios.  At the rate which I have adopted, this would entitle  Kilpatrick to $39,053.  My perception of the position of this party in the litigation is such that it would not require to incur costs of trial at the same rate as the Spotless Parties.  I will therefore allow 50%.

[55]I accept the approach of Mr Weingart that 50% perusal is reasonable.

[56]The parties have not accepted that the trial be conducted as an electronic trial.  Accordingly, this item is disallowed.

[57]5,000 pages  @ $5.26  = $26,300

15.	Perusal of Premier’s lay witness statements	$25,000.00	$0 (costs not yet incurred)	5,000 [58]
16.	Perusal of remaining defendants’ lay witness statements	$70,000.00	$0 (costs not yet incurred)	6,250 [59]
17.	Perusal of expert evidence pertaining to town planning filed by Premier	$15,000.00	$0 (costs not yet incurred)	Nil [60]
18.	Perusal of expert evidence pertaining to town planning filed by other defendants	$30,000.00	$0 (costs not yet incurred)	Nil [61]
19.	Examination of Expert Statements already filed on behalf of Kilpatricks and preparation of Further Expert Statements	$40,000.00	$25,000.00	25,000
20.	Preparation of Lay Statements	$20,000.00	$0 (costs not yet incurred)	20,000
22.	Directions	$16,000.00	$16,000.00	16,000
23.	Preparation for trial	$288,000.00	$130,000.00	130,000 [62]
24.	Brief to senior and junior counsel on trial	$162,000.00	$50,000.00	88,000 [63]
Total Estimate Costs & Disbursements From Mediation Up To Eve Of Trial[64]:	$1,473,062.00	$296,139.00	$403,898

[58]No details provided.  I allow the same amount as for the Spotless Parties item 17.

[59]No details provided.  I allow the same amount as for the Spotless Parties item 20.

[60]No details provided.  These costs are included in Item 14.

[61]No details provided.  This is not an area where this defendant is expected to play a major role.

[62]No details provided

[63]I allow 10 days preparation and the first day of trial for two counsel. 

[64]Costs allowed include Day 1 of Trial

1. In summary, therefore, the amount of further security to be provided will be as follows:

   
   
   

Defendant	Cost assessment	Security[65]
Spotless Parties	1,152,406	$921,925
North Suburban	420,000	$336,000
Keen Planning	604,588	$483,670
Kilpatrick Associates	403,898	$323,118

[65]I allow a discount of 20% on the estimated party and party costs as in the first assessment.

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