Rocla Pty Ltd v Plastream Pipe Technologies Pty Ltd

[2010] SASC 339

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Application)

ROCLA PTY LTD v PLASTREAM PIPE TECHNOLOGIES PTY LTD & ANOR

[2010] SASC 339

Judgment of The Honourable Justice Anderson

9 December 2010

PROCEDURE - COSTS - INTERLOCUTORY PROCEEDINGS - ADJOURNMENT AND AMENDMENT

Applications for costs thrown away as a result of the trial being adjourned - expedited trial date set early on - first defendant makes claim as against plaintiff and second defendant - plaintiff and second defendant make claims as against each other - whether costs should be awarded and if so to whom.

Held: Both plaintiff and second defendant at fault - the plaintiff and the second defendant will each pay half the first defendant's costs thrown away fixed in the amount of $9,940 - applications of the plaintiff and the second defendant to await outcome of the trial.

ROCLA PTY LTD v PLASTREAM PIPE TECHNOLOGIES PTY LTD & ANOR
[2010] SASC 339

Civil

1. ANDERSON J.                   This matter was set for a trial which was due to commence before me on Monday 29 November 2010. The plaintiff had applied for the matter to be heard expeditiously (FDN 2) and consent orders were made regarding the trial date on 18 August 2010. At a directions hearing on 24 November 2010 it became apparent that both the plaintiff and the second defendant were, for different reasons, not ready to proceed to trial.

2. The plaintiff’s reasons related to the late filing of an affidavit filed by Barry Taylor (FDN 28) on 23 November 2010. That affidavit deposed to matters relating to a claim for damages. It attached various documents and it was apparent that there was a new series of documents which were discoverable and which up until that point of time had not been discovered by the second defendant.

3. Mr Hoffmann QC for the plaintiff indicated that if the affidavit was received as part of the second defendants’ evidence he was not in a position to proceed because of the new information filed at late notice but, if I rejected the affidavit as evidence in the trial, then he was still in a position to proceed. Mr Hoffmann also advised me that there may be problems relating to another witness who had some health problems. I decided to receive the late affidavit from Mr Taylor

4. On the same day as the directions hearing the second defendant also filed, at about the same time that the hearing commenced, a second defence and second counterclaim. This was not drawn to my attention due to the events which unfolded and the adjournment which was ultimately granted. Since that time the parties have accommodated each other in discussions and as a result the document previously filed has been replaced with a substantially amended document which is not opposed by the plaintiff.

5. As a result of the adjournment, the first defendant applied for an order as to its costs thrown away as against the plaintiff and the second defendant. The plaintiff and the second defendant both made application for costs thrown away as against each other.

6. Mr O’Sullivan QC for the second defendant opposed the application by the plaintiff for its costs thrown away. He claimed costs on behalf of his client as against the plaintiff. Whilst conceding that the Taylor affidavit was late, he indicated that there was also default on the part of the plaintiff. The Taylor affidavit was required to be filed by 5 November 2010.

7. By the same token, the plaintiff was in default in that it had not filed an affidavit of evidence in rebuttal (FDN 29) which was due on 12 November 2010. That had still not been received by the date of the directions hearing on 24 November 2010. As it turned out that was an affidavit from Mr Lukban and Mr O’Sullivan claimed that having not received the responding affidavit he was not in a position to proceed when the trial was due to commence on 29 November 2010.

8. Mr O’Sullivan also pointed out that some advance notice was given when the first Taylor affidavit was filed that there would be a further affidavit in respect of damage and loss. However, that was only given some two days in advance of the actual affidavit and in my view probably does not make all that much difference.

9. In all of this Mr Doyle, who represents the first defendant Plastream Pipe Technologies Pty Limited, maintained that he was ready to proceed to trial and I accept that he was. Therefore, whoever was to blame for the matters which led to the adjournment, there was no fault of Mr Doyle’s client and he applied for costs. In my view there can be no dispute that Mr Doyle’s client is entitled to its costs thrown away. At the further hearing on Friday 3 December 2010 Mr Doyle advised that the amount of his client’s costs thrown away was in the sum of $9,940. In my view his client is entitled to all of those costs which are moderate.

10. Having considered the arguments presented to me, it is my view that each of the plaintiff and the second defendant should share the quantum of costs thrown away in respect of Mr Doyle’s client. In my view there is fault on both sides in relation to the lead up to the trial and, as I said at the time, everyone will be better off by better preparation with full documentation exchanged by the time the trial commences on the adjourned date.

11. Mr O’Sullivan suggested that it was preferable to wait until I knew more about the significance of the documents, including Mr Lukban’s affidavit when I would be in a position to decide the matter as between the plaintiff and the second defendant.

12. I have now decided that there is considerable merit in Mr O’Sullivan’s suggestion. I will therefore reserve the question of costs thrown away as between the first plaintiff and the second defendant until such time as I have given final judgment in this matter. By that time I will know the significance of the matters argued before me at this early stage of the proceedings.

13. I therefore order that the plaintiff and second defendant should each pay half of the costs thrown away of the first defendant fixed in the sum of $9,940.