| 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:
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.
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.
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.
The plaintiffs made an offer of compromise. It was dated 20 December 2000, and should be treated as having…
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- Case
- [2003] VSC 139
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the plaintiffs should be granted indemnity or solicitor and client costs in relation to their initial offer of compromise. The court also considered the effect of the defendant's subsequent offer on the period for which the plaintiffs should receive solicitor and client costs. Additionally, the court examined whether, given the circumstances, there should be an order in respect of the defendant's offer and whether the defendant's failure to comply with Order 44 during the period when its offer was open, along with incomplete discovery, warranted any particular costs consequences. The court needed to balance these factors against the plaintiffs' failure on one of their causes of action and the significance of proof of disputed matters on cross-notices to admit.
The court found that the plaintiffs were entitled to indemnity costs in relation to their initial offer of compromise, but the period for which they could claim solicitor and client costs was affected by the defendant's subsequent offer. Given the circumstances, including the defendant's failure to comply with Order 44 and incomplete discovery, the court made an order in respect of the defendant's offer, considering the plaintiffs' failure on one of their causes of action and the significance of the disputed matters on cross-notices to admit. The final orders reflected the court's assessment of these various factors, ensuring a fair and balanced outcome in the context of the costs incurred.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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