Simonovski v Bendigo Bank Ltd (No 2)

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 5425 of 2001

KOLE SIMONOVSKI BLAGICA SIMONOVSKI	Plaintiffs
v
BENDIGO BANK LTD	Defendant

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JUDGE:	Ashley, J
WHERE HELD:	Melbourne
DATES OF HEARING:	7, 23 April 2003
DATE OF JUDGMENT:	2 May 2003
CASE MAY BE CITED AS:	Simonovski and Anor v Bendigo Bank (No 2)
MEDIUM NEUTRAL CITATION:	[2003] VSC 139

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COSTS ‑ offer of compromise by plaintiffs ‑ later, larger offer of compromise by defendant ‑ new claim by plaintiffs in the interim ‑ whether plaintiffs should have indemnity or solicitor and client costs arising out of their offer of compromise ‑ effect of the defendant's offer on period for which plaintiffs should have solicitor and client costs ‑ whether in the circumstances there should be an order otherwise in respect of the defendant's offer ‑ defendant's failure to comply with O.44 during the period in which its offer was open ‑ important aspects of defence case not revealed ‑ incomplete discovery during period in which defendant's offer was open ‑ plaintiffs' failure on one of two discrete causes of action ‑ significance of proof of matters disputed on cross‑notices to admit.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr G. Garde, QC with Mr A. Sandbach	Novatsis & Alexander
For the Defendant	Mr A. Howard, QC with Mr J. O’Bryan	Hall & Wilcox

HIS HONOUR:

1. The plaintiffs are entitled to judgment in an amount, including statutory interest, of $285,448.40. Questions have arisen concerning costs.  Counsel for the plaintiffs submitted that his clients should have their costs on an indemnity basis from the date of the commencement of the proceeding.  Counsel for the defendant argued that the plaintiffs should have costs on a party and party basis after 27 August 2002; and that thereafter the plaintiffs should pay its costs on such a basis.  He further argued that the plaintiffs' costs up to 27 August 2002 should not include any costs referable to issues arising with respect to account 1089.

1. Counsel made subsidiary submissions as to the costs impact of notices to admit served by both plaintiffs and the defendant; and as to costs incurred by the plaintiffs with respect to proposed video link evidence by Mr di Simone, evidence which in the event was not adduced viva voce.  I will discuss those submissions in the course of these Reasons.

1. I consider that the plaintiffs should have their costs up to and including 22 December 2000, those costs to include reserved costs, on a party and party basis; that from 23 December 2000 up to and including 8 September 2002 they should have the costs of the proceeding generally, including reserved costs, as between solicitor and client; and that the plaintiffs' costs thereafter should be paid as to two thirds by the defendant on a party and party basis.  I must explain these conclusions.

1. The plaintiffs made an offer of compromise.  It was dated 20 December 2000, and should be treated as having…