Russell v Stag Tonkin and Co (Ruling No. 2)

[2017] VCC 814

Life ha

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
 Suitable for Publication

Case No. CI-16-05222

Christopher Andrew Russell	Plaintiff
v
David Stagg Tonkin & Company & Anor	Defendants

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JUDGE:	HIS HONOUR JUDGE SACCARDO
WHERE HELD:	Melbourne
DATE OF RULING:	21 June 2017
CASE MAY BE CITED AS:	Russell v Stag Tonkin & Co (Ruling No. 2)
MEDIUM NEUTRAL CITATION:	[2017] VCC 814

Ruling

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Subject:  Costs - Application for summary judgment

Ruling:First Defendant’s costs be taxed in default of agreement on a standard basis and paid by the Plaintiff – the Plaintiff pay the costs of the Second Defendant on an indemnity basis               

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	N/A	In Person
For the First Defendant	N/A	K&L Gates
For the Second Defendant	N/A	Obst Legal

HIS HONOUR:

1       On 12 April 2017 I made a ruling that the plaintiff’s claim against the first defendant be summarily dismissed.

2       That ruling in turn was based upon my finding that the claim made by the plaintiff against the first defendant had no real prospect of success given the Estoppel which arose with respect to that claim.

3       I am satisfied that the first defendant is entitled to an order with respect to its costs associated with the claim commenced against by the plaintiff. In my opinion there are no grounds upon which an assertion could be founded that the normal rule, namely that the cost should follow the event, should not be applied as to that claim.

4       The plaintiff now makes application that the second defendant should, in effect indemnify, the plaintiff in respect of any order for costs to which the first defendant is entitled by reason of my ruling of 12 April 2017.

5       In making that application the plaintiff relies upon an assertion that he would not have commenced the proceeding against the first defendant had he been aware of the second defendant’s admitted behaviour (“the admitted behaviour”) in failing to brief counsel with the December 2013 letter referred to in paragraph 2 of his submissions in this instance (“the letter”)[1].

[1]Whilst in submissions made by the plaintiff he has advanced numerous arguments, those arguments other than the one which I currently refer are misconceived and baseless.

6       The assertion by the plaintiff referred to above as to the relevance of the admitted behaviour in the decision by the plaintiff to commence the proceeding against the first defendant is merely an assertion which remains untested and about which no finding has been made.

7       Whilst I am satisfied that it might be arguable in some cases that a defendant to a proceeding should indemnify a plaintiff with respect to the plaintiff’s costs incurred by reason of an unsuccessful claim against another party to the proceeding, I am not satisfied in this instance that the plaintiff has established any basis for such an order.

8       For these reasons I am not satisfied that the plaintiff has made good his onus to establish that the second defendant should assume any responsibility in respect of the costs associated with my ruling made 12 April 2017.

9       Upon the plaintiff making the present application against the second defendant I advised the plaintiff in the course of directions hearing:

·    as to the relative novelty of the application he was making;

·     that should he pursue the application I would require written submissions both by the plaintiff and the second defendant as to the issue; and

·    that should the plaintiff fail in the application he would be exposed to the costs associated with that process.

10      Given that the plaintiff elected at that time to proceed with this application, when considered in the context of the misconceived nature of the application, I am satisfied that a costs order should be made in favour of the second defendant with respect to this application on an indemnity basis.

11 In making that order I am cognisant of my obligations and powers under sections 7-9 of the Civil Procedure Act 2010. I also give due weight to the fact that the plaintiff is self – represented and for that reason was entitled to the guidance provided by me in the course of directions hearing referred to above, but in the context of that guidance elected to proceed with the application.

12      Equally, given the findings made by me in my ruling of 12 April 2017 I am satisfied that I should make an order that the plaintiff’s proceeding against the first defendant be dismissed.

13      Given the relative complexity of the issue which arose however, namely the concept of Estoppel, I am not satisfied that I should make an order other than the normal order which a successful party would be entitled to, namely that the defendant’s costs be taxed in default of agreement on a standard basis and paid by the plaintiff.

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