Solari v CGU Insurance Limited (Ruling No 2)
[2015] VCC 245
•12 March 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-14-04070
| MARK SOLARI | Plaintiff |
| v | |
| CGU INSURANCE LIMITED (ACN 004 478 371) | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 March 2015 | |
DATE OF RULING: | 12 March 2015 | |
CASE MAY BE CITED AS: | Solari v CGU Insurance Limited (Ruling No 2) | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 245 | |
RULING
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Subject: PRACTICE AND PROCEDURE - COSTS
Catchwords: Ruling dismissing the plaintiff’s proceeding – costs – whether the defendant is entitled to its costs – whether the defendant’s pre-litigation conduct should deprive it of its costs – whether the defendant should pay the plaintiff’s costs
Cases Cited:Solari v CGU Insurance Limited (Ruling No 1) [2015] VCC 207
Ruling: The plaintiff’s proceeding is dismissed. Defendant to pay the plaintiff’s costs incidental to the adjournment of the Summons returnable on 6 February 2015 on a standard basis, to be assessed by the Costs Court in default of agreement. No order as to costs relevant to the return and hearing of the Summons on 20 February 2015. Plaintiff pay 50 per cent of the defendant’s costs of the proceeding on a standard basis, to be assessed by the Costs Court in default of agreement.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Cherry | Ligeti Partners |
| For the Defendant | Mr J Richardson | Norris Coates |
HIS HONOUR:
Introduction
1 On 6 March 2015, I delivered a Ruling dismissing the plaintiff’s proceeding.[1] After publishing my reasons, I called upon counsel to address me on the orders I should make. This short Ruling must be read within the context of my principal Ruling.
[1]Solari v CGU Insurance Limited (Ruling No 1) [2015] VCC 207
2 Ms S Cherry of counsel appeared for the plaintiff. Mr J Richardson of counsel appeared for the defendant.
3 Mr Richardson submitted that the plaintiff should pay the defendant’s cost of the proceeding. Ms Cherry submitted that the defendant should pay the plaintiff’s costs.
4 Ms Cherry submitted that I should order that the defendant pay the plaintiff’s costs. In summary, she submitted:
· The defendant initially denied that it was the insurer.
· The defendant later admitted that it was the insurer, but not the insurer for Hagemeyer.
· The discovered contract of insurance ultimately has apparent unexplained deficiencies.
· The Defence did not disclose, as it should have, the actual defences relied upon by the defendant, consistent with the manner in which the defendant submitted that the plaintiff’s proceeding should be dismissed.
· The Summons filed by the defendant was destined to fail until leave was granted to the defendant to amend the Summons to obtain the relief referred to in paragraph 9 of my principal Ruling.
· The reason why the first return date of the Summons of 6 February 2015 was adjourned was because of the serious deficiencies in the relief sought by the defendant in the Summons.
5 Ms Cherry submitted that if I gave due weight to each of those matters, that the defendant should not obtain its costs, but rather it should be ordered to pay the plaintiff’s costs.
6 Mr Richardson submitted that the affidavit evidence, relied upon by the defendant, did not traverse any of the pre-litigation conduct of the defendant relied upon by the plaintiff, and therefore, he wanted to obtain instructions to determine whether the defendant should file and serve further affidavit evidence. That application was opposed by Ms Cherry.
7 I very reluctantly decided to permit the filing of further affidavit evidence by the defendant before ruling on the question of costs. I also informed the parties that I would not make any formal orders until I had composed a short ruling on the question of costs, so that time would commence running for appeal purposes then, and not on 6 March 2015.
8 I would have delivered an ex tempore ruling on the question of costs but for the application made by Mr Richardson to file and serve further affidavit evidence. I informed the parties that any further ruling would be short and consistent with the submissions they made. I was later informed that the defendant did not wish to file and serve any affidavits.
The liability for costs
9 I will firstly deal with the defendant’s Summons and the first return date of 6 February 2015. The reason why the Summons was adjourned was because the defendant wanted to file and serve further affidavits.
10 On the return of the Summons, on 20 February 2015, argument ensued relevant to the relief sought in the Summons. It was only after a concession was made by Ms Cherry that I allowed the Summons to be amended.
11 The reason for the adjournment of the Summons was entirely the fault of the defendant. Therefore, I propose to order that the defendant pay the plaintiff’s costs of and incidental to the adjournment.
12 I will next deal with the second return date of the Summons of 20 February 2015. If I had not allowed an amendment of the Summons, then the plaintiff would have been successful in having it dismissed. I do not propose to explore why that is so, except to say that Mr Richardson conceded in his written outline that the relief sought in the unamended Summons was unlikely to succeed.
13 If Ms Cherry had not made the concession to allow the Summons to be amended, then I think I would have adjourned the Summons again at the defendant’s cost. It was only as a result of the concession that the Summons proceeded. Therefore, I propose to order that neither party obtain their costs of 20 February 2015.
14 I will lastly deal with the cost of the proceeding. Whilst it is true that the defendant has succeeded in defeating the plaintiff’s claim, it does not follow that it is entitled to its costs.
15 The Defence filed by the defendant is deficient in many respects. I dealt with the Defence in paragraphs 4-6 of my principal Ruling. I do not propose to turn to the manner in which a defence must be drafted in this Ruling, except to say that to merely admit or deny allegations is wholly insufficient.
16 Parties must, by now, understand that if there is a substantive defence, it must be pleaded. The purpose served by a pleading of that kind is to allow the real issues to surface. If the defendant had pleaded a defence that the insurance contract did not respond to the claim made by the plaintiff, then that might have encouraged both the plaintiff and the defendant to attack the proceeding very differently, but I acknowledge that might not have occurred.
17 Parties must be discouraged from drafting defences of this kind. Parties must be encouraged to draft defences which are informative, otherwise the whole purpose of pleadings in the modern way of conducting litigation is completely lost. It will inevitably lead to litigation being unnecessarily protracted, and will delay the prospect of resolution of the proceeding at the earliest possible time.
18 Furthermore, parties must be encouraged to bring an application to strike out pleadings or to dismiss a proceeding, at the earliest possible time. For that to be done, the relief sought in the summons must be intelligently drafted. It was not in this case. If it had been drafted properly, then it may be that the affidavits on both sides might have been sharpened by the focus being directed to the relevant clauses in the insurance contract, rather than the turgid and discursive affidavits which were produced on both sides.
19 I propose to make an order for costs in favour of the defendant only because it has been successful, but I do not consider that it is entitled to all of its costs. I will allow the defendant 50 per cent of its costs.
Orders
20 The orders I now make are as follows:
(1) The plaintiff’s proceeding is dismissed.
(2) The defendant must pay the plaintiff’s costs incidental to the adjournment of the Summons returnable on 6 February 2015 on a standard basis, to be assessed by the Costs Court in default of agreement.
(3) There be no order as to costs relevant to the return and hearing of the Summons on 20 February 2015.
(4) The plaintiff must pay 50 per cent of the defendant’s costs of the proceeding on a standard basis, to be assessed by the Costs Court in default of agreement.
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