Segment Woods Pty Ltd v Brockbridge Pty Ltd

[2010] VCC 1

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION

COMMERCIAL-GENERAL DIVISION

Case No. CI-09-01865

SEGMENT WOODS PTY LTD	Plaintiff
ACN 007 008 817
v
BROCKBRIDGE PTY LTD	First-named Defendant
ACN 005 661 138
MICHAEL HENRY ROTH	Second-named Defendant
and
JIM MENG	Third-named Defendant

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JUDGE:	HIS HONOUR JUDGE GINNANE
WHERE HELD:	Melbourne
DATE OF HEARING:	22 - 23 October 2009
DATE OF JUDGMENT NO.1:	11 December 2009
DATE OF JUDGMENT NO.2	29 January 2010
CASE MAY BE CITED AS:	Segment Woods Pty Ltd v Brockbridge Pty Ltd & Ors
MEDIUM NEUTRAL CITATION:	[2010] VCC 0001

REASONS FOR JUDGMENT NO.2

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Catchwords: Costs - Landlord and tenant – Landlord’s claim for possession succeeding – unsuccessful argument by tenant that dispute between landlord and tenant within the exclusive jurisdiction of the Victorian Civil and Administrative Tribunal – Costs follow the event: Retail Leases Act 2003 (Vic)

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J K Arthur	Scanlon Carroll
For the First and Second Defendants	Mr M Roth, the second defendant, appeared in person
HIS HONOUR:

1          On 11 December 2009 I delivered judgment in this matter and made orders that the plaintiff was entitled to possession of parts of the premises at 140- 142 Langridge Street, Collingwood. I published reasons for judgement on that day.

2          I gave the first and second defendants the opportunity to consider the reasons and determine whether they wished the matter to be listed for argument about costs. I informed the second defendant that normally in civil proceedings costs followed the event.

3           Subsequently the Court was informed by the second defendant, who also represented the first defendant, that he did not wish to have the matter re- listed for a costs hearing. Accordingly, I now proceed to deal with the question of costs.

4          In this matter the plaintiff had to commence proceedings in the Court to obtain possession of the relevant premises and having succeeded would normally be entitled to an order for costs.

5          I have considered the possible arguments that might be put on behalf of the first and second defendants opposing such an order. These include the fact that the first and second defendants were asserting that the matter was properly within the jurisdiction of the Victorian Civil and Administrative Tribunal, where different rules about costs apply.

6          However, as stated the plaintiff had to commence these proceedings to obtain the order for possession. In those circumstances I consider that the normal rule of costs following the events should apply.

7          The plaintiff has not obtained a judgment for damages. The order made is for possession of premises. In the circumstances I consider that the appropriate scale on which to award costs is County Court Scale C.

8          Therefore I order that the first and second defendants pay the plaintiff’s costs of this proceeding to be taxed in default of agreement on County Court Scale C.

9           My order is obviously intended to apply only to the proceeding to date, as the order of 11 December 2009 adjourned to a date to be fixed any other claim for relief referred to in the Summons filed by the plaintiff dated 10 August 2009.

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