Salta Properties Pty Ltd - v - Finsbury Printing Pty Ltd
[2015] VCC 853
•19 June 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMERCIAL DIVISION | Revised |
Case No. CI-14-03131
| SALTA PROPERTIES (PORT MELBOURNE) PTY LTD (ACN 082 021 083) | Plaintiff |
| v | |
| FINSBURY PRINTING AUSTRALIA PTY LTD (ACN 099 835 739) & ORS ACCORDING TO THE ATTACHED SCHEDULE | Defendants |
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| JUDGE: | HER HONOUR JUDGE KENNEDY | |
| WHERE HELD: | Melbourne | |
| DATE OF HEARING: | 19 June 2015 | |
| DATE OF RULING: | 19 June 2015 | |
| CASE MAY BE CITED AS: | Salta Properties Pty Ltd – v – Finsbury Printing Pty Ltd | |
| MEDIUM NEUTRAL CITATION: | [2015] VCC 853 | |
REASONS FOR RULING
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Catchwords: COSTS – whether special circumstances justify departure from usual order– no special circumstances found – costs follow the event
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R. Moore | Logie-Smith Lanyon |
| For the Defendants | Mr J. Nixon | Piper Alderman |
HER HONOUR:
1 In the final reasons for decision dated 10 June 2015, I determined that the plaintiff was entitled to judgment against the first defendant. I then stood the matter over to today to pronounce on final orders, including orders as to costs.
2 The parties have co-operated in producing minutes of proposed orders and short submissions. They have helpfully agreed on most outstanding matters, with the exception of the final costs order to be made on costs in favour of the plaintiff against the first defendant.
3 In the result, the sole issue before the court is whether the plaintiff is entitled to the whole of its costs against the first defendant, or whether, as the first defendant submits, there should be an order that the plaintiff be entitled to only 50% of its costs (or some other lesser amount).
4 By way of background, the sole issue between the plaintiff and the first defendant was (always) limited to that of quantum.
First Defendant’s submissions
5 The applicable principles that guide the exercise of the discretion are that ordinarily costs follow the event, such that a successful litigant receives its costs in the absence of special circumstances justifying some other order.[1]
[1] Williams Civil Procedure 63.02.80; see also Roadshow Films Pty Ltd and Ors v iiNet Ltd (2010) 269 ALR 606 at [26].
6 The first defendant relied upon four matters to suggest that a different situation should pertain in the present case.
7 Firstly, it submitted that there was no proper basis for making two claims, being:
a. A claim for loss of bargain damages that appeared in the original statement of claim (given that the plaintiff had entered into another lease -through its solicitor, Mr Regan- and had in fact sold the property as at that time); and
b. A claim for seven months rent (in circumstances where it must have been known that only six months was appropriate given the execution of a deed of variation).
8 The second matter was that the affidavit of documents (also executed by Mr Regan) was a false affidavit.[2] In oral submissions Counsel highlighted that it failed to include a set of emails of September 2013, which were highly significant to the resolution of the issue as to the lease incentive amount.[3]
[2] Outline of Defendants’ Submissions on Costs, paragraph 19.
[3] Reasons, paragraph 115.
9 The third matter was that various claims substantiating the quantum were made and abandoned during the course of the litigation.[4]
[4] Outline of Defendants’ Submissions on Costs, paragraph 21.
10 Finally, that the plaintiff litigated and lost some of its claims, particularly the $150,000 lease incentive fee claim.
11 I will therefore deal with each of these matters in turn.
Allegations of no proper basis
12 It is obviously undesirable for a party to make a claim that does not have a proper basis. It appears, on the limited evidence in front of me, that there was no objective basis for making the claims for loss of bargain damages and for the seven months rent ( as opposed to six months).
13 However, I am not in a position to say precisely how or why this occurred without more extensive inquiry.
14 Moreover, the matter appears to have been “caught” very early. Thus in the defence dated 12 August 2014 the first defendant pleads that the plaintiff had entered into a lease and sold the premises in response to the claim for damage[5].
[5] Defence dated 12 August 2014 paragraphs 28 and 29.
15 In such circumstances, there is very little evidence of any significant costs incurred as a result of the making of these claims.
Affidavit of Documents
16 In terms of the affidavit of documents, there did appear, (as occurs too often) to be incomplete discovery on both sides of the litigation.
17 Although the September 2013 emails should have been discovered, I am not satisfied that their non-inclusion justifies a different costs order.
Claims made and abandoned
18 It is true that a number of claims were abandoned/ reduced.
19 However, it is appropriate for practitioners to re-work their claims so that only appropriate claims are litigated and adjudicated upon.
20 There also appeared to be little time devoted to pursuing untenable claims.
21 Given these circumstances and the relatively confined nature of the quantum claim, I am not satisfied that the plaintiff should be penalised for the re-working of its case.
Lease incentive
22 My observations above also apply in relation to the claim for the lease incentive which was lost.
23 The first defendant also only conceded an amount of $260,985.20. I am generally satisfied that the plaintiff acted reasonably in pursuing its claims in court in circumstances where it ultimately obtained an amount of $327,835.53
24 The quantum issue was also generally conducted in an efficient, cost effective manner.
Conclusion
25 Overall, considering these matters both individually and cumulatively, I am satisfied that the usual order that costs should follow the event should be made.
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SCHEDULE OF PARTIES:
| SALTA PROPERTIES (PORT MELBOURNE) PTY LTD (ACN 082 021 083) | Plaintiff |
| v | |
| FINSBURY PRINTING AUSTRALIA PTY LTD (ACN 099 835 739) | First Defendant |
| FINSBURY GREEN PTY LTD (ACN 007 743 151) | Second Defendant |
| PETER ROBERT OREL | Third Defendant |
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