Smith v Charter Financial Planning Limited (Ruling No 2)

[2013] VCC 2049

IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE

CIVIL DIVISION

 Revised
Not Restricted
Suitable for Publication

DAMAGES AND COMPENSATION LIST
GENERAL DIVISION

Case No. CI-13-03157

CHRISTOPHER SMITH (in his own right and as EXECUTOR OF THE ESTATE OF THE LATE KELLEY GRANTHAM)	Plaintiff
v
CHARTER FINANCIAL PLANNING LIMITED (ACN 002 976 294)	Defendant

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JUDGE:	HIS HONOUR JUDGE MISSO
WHERE HELD:	Melbourne
DATE OF HEARING:	13 and 18 December 2013
DATE OF RULING:	18 December 2013
CASE MAY BE CITED AS:	Smith v Charter Financial Planning Limited (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2013] VCC 2049

RULING
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Subject:   PRACTICE AND PROCEDURE               

Catchwords:             Failure by the parties to resolve a simple interlocutory issue – both parties filed summonses seeking interlocutory relief – both parties incurred unnecessary cost – determination that the defendant should obtain an order for costs – reasons for awarding a modest sum of costs.

Ruling:   The plaintiff must pay the defendant's costs of the Summonses fixed at $1.000.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P Bingham	Maurice Blackburn
For the Defendant	Mr Tesarsch	Norton Rose Fulbright Australia

HIS HONOUR:

Introduction

1       I delivered a ruling on the principal issues raised by the parties on 18 December 2013.[1] Subsequently, the parties submitted Interlocutory Orders which I consider to be satisfactory to set out the steps which the parties are to take preparatory to the trial now fixed for 29 September 2014.

[1][2013] VCC 2029

2       The remaining matter for me to determine is the question of costs.  I informed the parties that I intended to make an order for costs in favour of the defendant; however, I was not satisfied that there was much substance in the defendant’s application for costs.  My reasoning in that regard is set out in my principal ruling.

3       Interlocutory stoushes of this kind are frowned upon because they occupy time and put the parties to unjustified cost, and the time of the Court is used for no particularly good purpose.

4       The parties should have agreed to allow the plaintiff to substitute one party for the another.  That could have been done without either party incurring costs of any material quantum.  If there were any costs incurred, then it is a ludicrous state of affairs for modest costs to be pursued so vigorously when they should have been absorbed by the parties.

5       I think there is merit in the submission simply made by Mr Bates that picking up the phone and organising for steps to be taken is simple and cost-effective, and meets the overarching purpose and obligation imposed upon him.  Whilst I do not suggest anything untoward on the part of the solicitor for the defendant at all, what is apparent is that this simple issue got out of hand and resulted in two Summonses being issued, and the briefing of Counsel to argue an issue of breathtaking simplicity.

6       I return to the premise which underwrote my view that the plaintiff must pay the defendant’s costs, but I do not intend to make an order that the plaintiff be responsible for the cost of the defendant’s Summons, the supporting affidavit and Counsel’s fees.  In my view, that represents overkill.

7       I propose to order that the plaintiff pay the defendant’s costs fixed in the sum of $1,000.  My reasoning is that the parties should have agreed to the plaintiff substituting one party for the other.  The plaintiff should have agreed to pay some costs relevant to the filing of an Appearance and a Defence for the substituted party.  Beyond that, it is difficult to see what other costs the defendant would have incurred.

8       It would appear that it was the question of costs which created the point of friction between the parties.  That is regrettable, because it has caused a spiral which should have been staunched.  The failure of the parties to come to some agreement about costs resulted in the defendant filing a Summons seeking judgment.  That application was always doomed to fail.  It then resulted in the plaintiff filing a Summons seeking an order for substitution.  That application was always going to succeed.

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