Premier Building & Consulting Pty Ltd v Spotless Group Limted (No 5)
[2005] VSC 19
•18 February 2005
| 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) & ORS | Defendants |
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JUDGE: | BYRNE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 December 2004 | |
DATE OF JUDGMENT: | 18 February 2005 | |
CASE MAY BE CITED AS: | Premier Building & Consulting Pty Ltd v Spotless Group Ltd (No. 5) | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 19 | |
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Practice and procedure – security for costs – amount of security.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G J Digby QC Mr N Pane Mr T R O Boston Mr C Shaw | Baker & McKenzie |
| For the Defendants | Mr J E Middleton QC Mr T J P Walker | Freehills |
| For the 2nd Defendant (North Suburban) | Mr M Dreyfus QC | Blake Dawson Waldron |
| For the 4th Defendant | Mr B F Quinn | Monahan & Rowell |
| For the 5th Defendant | Mr J H Gobbo QC Mr D Aghion | Deacons |
| For the 6th Defendant | Mr C C Macaulay SC Mr A Hanak | Herbert Geer & Rundle |
| For the 7th Defendant | Mr P Over | Slater & Gordon |
| For the 8th Defendant (McMullin Nominees) | Mr A G Uren QC Mr C J Wren | Mallesons Stephen Jaques |
HIS HONOUR:
On 8 December 2004, I ordered that the plaintiffs provide security for the costs of each of the defendants. I indicated that I would direct that security be provided at this stage for these costs up to and including the mediation which is scheduled to take place in March 2005. The amount of this security in each case was left for further consideration. I now undertake this task.
I have received affidavits filed on behalf of the contending parties and their written submissions. In making the assessment in each case I apply the following principles:
(1)My task is not to undertake anything in the nature of a taxation of the suggested bills; it is to fix an amount which fairly achieves the objective of Rule 62.02 and s. 1335 of the Corporations Act.
(2)It is accepted that the security is not intended to indemnify the defendant in question with respect of all of its party and party costs. I will therefore give an overall discount of 20% as suggested by the Spotless parties.
(3)I do not include the costs of interlocutory applications where costs have been ordered to be paid in those applications.
(4)I do not include the costs of the security application itself. These will be dealt with as part of the order in the security application.
(5)I will not allow to a defendant the costs of proceeding between it and another defendant or between it and a third party.
(6)Notwithstanding the preceding paragraph, I will allow costs of discovery from other defendants because this will, in this case, assist the defendant in the conduct of its own case.
(7)I will allow transcript of directions hearings having regard to the provisions of Practice Note 3 of 2004.
(8)I will allow for preparation of a data base set of documents as it is desirable that this be done at the earliest stage for the benefit of the trial for all parties[1].
(9)I am not concerned with costs which may yet be incurred. Accordingly, I will not allow costs of proposed interrogatories or those brought about by the expected production of documents pursuant to the Spotless subpoenas.
(10)Where appropriate I have rounded figures off.
[1]See Practice Note No 1 2002.
In the light of those general principles, I have determined that the following security be provided, some details of which are to be found in the tables which follow. First, the Spotless Parties’ Costs - $201,500; North Suburban’s Costs - $85,000; Collie’s Planning Costs $123,500; Keen’s Planning Costs - $74,200; Moreland City Council’s Costs - $185,500; Kilpatrick & Associate’s Costs - $80,000; McMullin Nominees’ Costs - $145,000.
1 & 3Spotless Parties' Costs
Item Mahlab Ptlff Allow 1 Contribution Claims 46,682 0 2 Discovery 138,198 138,198 3a Subpoenas 137,744 70,000[2] 3b Subpoenas 184,736 184,736 4 Intgs 18,439 0 5 Directions 36,684 36,684 6 Mediation 39,684 39,684 7 Witnesses 583,520 0 8a Database 37,376 37376 8b Chronological List 20,832 0 9 Trial 696,845 0 Total 1,940,740 506,678 80% 405,342 Less provided 204,000 Balance 201,342 [2]The figure for the costs arising out of the documents produced pursuant to the plaintiff’s subpoena is not supported by the affidavit of Ms Lincoln. I will allow 50% only.
Amount of further Security $201,500.
2 North Suburban's Costs
Item Wyld Pltff Allow To end mediation 106,000 100,014 106,000[3] 80% 84,800 [3]The Wyld assessment total is not seriously challenged.
Amount of Security $85,000.
4Collie's Planning Costs
Item Attard Ptff Allow 9 To application 32,000 32,000 10 To end mediation 235,700 122,366 122,366[4] Total 267,700 154,366 80% 123,493 [4]Pltffs' figure accepted by Collie.
Amount of Security $123,500.
5Keen's Planning Costs
Item White Pltff Allow To Application 21,960 21,960 Application to end mediation 153,245 70,745[5] Total 175,205 88,838 92,705 80% 74,164 [5]Disallow items 11, 12, 13.
Amount of Security $74,200.
6Moreland City Council's Costs
Item Scott Ptlff Allow To 24 Nov 2004 157,130 131,800 To end mediation 172,260 100,014 Total 314,380 231,814[6] 80% 185,451 [6]Accept Weingart's figures.
Amount of Security $185,500.
7Kilpatrick & Associate’s Costs
Item Nichols Pltff Allow To Application 70,849[7] To end mediation 39,424 Total 110,273 88,838 100,000[8] 80% 80,000 [7]Not sufficiently detailed to accept.
[8]Assessment based on the slender details provided and a comparison with the costs of like parties.
Amount of Security $80,000.
8McMullin Nominees’ Costs
Item Sango Pltff Allow To Application 129,918 74,300 125,000[9] To end mediation 125,395 56,089[10] Total 255,313 100,014 181,089 80% 144,871 [9]Reduce as per items (f), (g), (h) plus directions hearing allowed at $5,350.
[10]Allow direction hearings (3), mediation and advice on evidence only.
Amount of Security $145,000.
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