Re Smagala; Cicmilovic v Renwick
[2017] VSC 498
•29 August 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY & PROBATE LIST
S CI 2017 00373
| DANIELA CICMILOVIC | Plaintiff |
| v | |
| PETER GERARD RENWICK (as Executor of the Estate of Veronica Smagala, deceased) | First Defendant |
| -and- | |
| REGISTRAR OF TITLES | Second Defendant |
---
JUDGE: | McMillan J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 28 July 2017 |
DATE OF RULING: | 29 August 2017 |
CASE MAY BE CITED AS: | Re Smagala; Cicmilovic v Renwick & Anor |
MEDIUM NEUTRAL CITATION: | [2017] VSC 498 |
---
COSTS — Whether costs should be taxed immediately or when proceeding has ended —Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 63.20.1 — Dale v Clayton Utz (No 3) [2013] VSC 593 — Setka v Abbott (No 2) [2013] VSCA 376
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Stuckey | Ascot Solicitors |
| For the First Defendant | Mr J D McKay | Kennedy Guy Solicitors |
| For the Second Defendant | No appearance | No appearance |
HER HONOUR:
Veronica Smagala died on 5 May 2016 (‘the deceased’). Probate of her will dated 22 November 2012 was granted on 21 June 2016.
The plaintiff and the deceased were neighbours. The plaintiff issued this proceeding in February 2017 against ‘the estate of Veronica Smagala’ alleging that in or about February 2016, the deceased promised to give her a unit in King Edward Avenue, Albion in the State of Victoria (‘the property’) or the proceeds of sale of the unit.
The plaintiff alleged that this was in return for her care and assistance to the deceased towards the end of the deceased’s life. The plaintiff sought wide ranging relief, including compensatory, injunctive and declaratory relief on several grounds, including proprietary and promissory estoppel, unconscionable conduct, and unjust enrichment.
At the first directions hearing, the Court questioned the plaintiff’s description of the first defendant as ‘the estate of Veronica Smagala’ in the proceeding and the first defendant foreshadowed making an application for summary judgment or dismissal of the plaintiff’s proceeding. Orders were made granting leave for the plaintiff to file an amended statement of claim to amend the description of the first defendant and for the first defendant to issue a summary judgment or dismissal application.
By summons filed 9 June 2017, the first defendant sought summary judgment or dismissal of the proceeding, alternatively, that the amended statement of claim be struck out (for convenience called ‘the summary dismissal application’).
At the hearing of the summary dismissal application 23 June 2017, the plaintiff sought leave to file a further amended statement of claim, conceding that her initial claim was unsatisfactorily pleaded. The plaintiff’s proposed further amended statement of claim changed the time of the deceased’s promise from February 2016 to late 2014 and abandoned the broad grounds for relief originally claimed by the plaintiff. Leave was granted to the plaintiff to file the further amended statement of claim and the plaintiff was ordered to pay the costs of and incidental to the first defendant’s summons on an indemnity basis.
The first defendant also sought orders that the costs be taxed immediately, pursuant to r 63.20.1 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’).
The plaintiff opposed this application. Written submissions were filed with the further hearing of the application heard on 28 July 2017.
Applicable principles
Rule 63.20 of the Rules provides that where an interlocutory application is made in a proceeding and no order is made on the application or the order is silent as to costs, the costs are the parties’ costs in the proceeding, unless the Court otherwise orders. Rule 63.20.1 provides that unless the Court orders, costs orders on an interlocutory application or hearing shall not be taxed until the proceeding is completed.
The rationales for not taxing costs before the completion of a proceeding include the avoidance of multiple taxations and the attendant costs, avoiding interlocutory applications being used as a means to exhaust the funds of an opposing party, and avoiding unfairness in a case where, for example, a party who is ultimately successful is unable to set off their judgment against an earlier liability to pay costs.[1]
[1]Dale v Clayton Utz (No 3) [2013] VSC 593 (22 November 2013) [21].
Notwithstanding this general rule, there are certain circumstances where such an order will be made on an interlocutory application, for example, where there is a prospect of considerable delay in the finalisation of a proceeding, where the issue that is the subject of the interlocutory order involved a separate or discrete issue, and where the party against whom the substantive order was made was guilty of ‘unreasonable’, ‘reprehensible’ conduct or conduct lacking ‘competence and diligence’, which the Court has found to constitute unsatisfactory conduct in the circumstances.[2] The categories are not closed and are illustrative of when a court might order an immediate taxation, noting that the Court’s discretion to order immediate taxation is confined only by the principle that it must be exercised judicially.[3]
[2]Setka v Abbott (No 2) [2013] VSCA 376 (17 December 2013) [27] (Warren CJ, Ashley and Whelan JJA) citing Dale v Clayton Utz (No 3) [2013] VSC 593 (22 November 2013) [58]–[71], [80]–[82].
[3]DC Payments Pty Ltd v Next Payments Pty Ltd (No 2) [2017] VSC 22 (3 February 2017), [5] citing Dale v Clayton Utz (No 3) [2013] VSC 593 (22 November 2013) [60] and Setka v Abbott (No 2) [2013] VSCA 376 (17 December 2013) [27]; Fanissa Pty Ltd v Versace [2016] VSC 416 (8 July 2016) [24] citing Dale v Clayton Utz (No 3) [2013] VSC 593 (22 November 2017) [57]–[60].
Consideration
On 9 June 2017, the plaintiff was aware of the hearing of the summary dismissal application on 23 June 2017. As directed by the Court, the first defendant filed
his written submissions in support of the summary dismissal application. The focus of the first defendant’s summary dismissal application was the plaintiff’s asserted detrimental reliance between the deceased’s alleged promises made in February 2016 and her death in May 2016 and the consequential relief sought by the plaintiff.
After delivery of the submissions and on the evening before the hearing, the first defendant received notice of the plaintiff’s proposed amendments to her statement of claim, giving him limited time to respond. The plaintiff’s amended statement of claim alleges that the alleged promises were made sometime in late 2014, representing a substantial and significant amendment to her claim. Further, in the amended statement of claim, the plaintiff removed the claims for unconscionable conduct and injunctive relief. The estoppel claim remains but is replaced with entirely different factual allegations and the period of reliance is enlarged from three months prior to the plaintiff’s death to some years before her death.
The plaintiff contends that her original claim and the amended claim are inextricably linked with the issues for final determination at the trial and that the essential factual elements of the claim have been clear from the commencement of the plaintiff’s claim, with the substance of the claim remaining the same. This submission is not made out. The plaintiff’s claim is now a different and separate claim from her original claim.
The plaintiff’s original claim can be seen as truly discrete and separate from the proceeding now advanced by the plaintiff in her amended statement of claim. In substance, the plaintiff has started her proceeding afresh. As a result, the work undertaken by the first defendant for the summary dismissal claim and much of the work that proceeded it has not advanced the litigation and costs have been wasted.
The consequence of the plaintiff’s amendments meant the summary dismissal application would not proceed. On 23 June 2017, the plaintiff conceded the claim as articulated was inadequate and needed to be re-drawn.[4] No explanation was provided by the plaintiff or her solicitor for this unsatisfactory turn of events.[5]
[4]Transcript of Proceedings, Cicmilovic v Estate of Veronica Smagala (Supreme Court of Victoria, S CI 2017 00373, McMillan J, 23 June 2017) 4.
[5]No criticism is made of counsel who was retained shortly prior to the hearing date.
Under the Civil Procedure Act 2010, the parties and their legal practitioners have obligations to ensure all claims brought have a proper basis, to take steps to resolve or determine the dispute, to co-operate in the conduct of the proceeding, to narrow the issues in dispute, and to minimise delay.[6] Prima facie, the conduct of the plaintiff is unreasonable and unmeritorious and lacks the competence and diligence expected of parties in commencing and proceeding with civil litigation. This conduct by the plaintiff caused wasted costs for the first defendant in the preparation for and the hearing of the summary dismissal application. It has also resulted in delay in the proceeding as it is at the same stage since it was commenced six months ago.
[6]Civil Procedure Act 2010, ss 18–20, 23, 25.
Conclusions
These circumstances warrant a departure from the usual rule under r 63.20 of the Rules and the plaintiff will be ordered to pay the costs of the first defendant of and incidental to his summons filed 9 June 2017 on an indemnity basis, to be taxed immediately and not at the conclusion of the proceeding.
The parties should forward an updated minute of order reflecting the costs order and the further directions to be made in the proceeding, substantially in the form of the minute submitted by the first defendant on 28 July 2017.
---
0
4
0