Spralja v Bullards (Ruling No. 3)

[2017] VCC 1909

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION GENERAL LIST

Revised
Not Restricted
Suitable for Publication

Case No. CI-14-00707

STEVE SPRALJA	Plaintiff
v
DAVID ERNEST BULLARD and ANTHONY BULLARD (trading as ‘BULLARDS’)	First Defendants
and
GLENN CASEMENT	Second Defendant
and
MICHAEL SCARFO	Third Defendant

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JUDGE:	HIS HONOUR JUDGE SACCARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	27 & 29 November 2017
DATE OF RULING:	15 December 2017
CASE MAY BE CITED AS:	Spralja v Bullards & Ors (Ruling No. 3)
MEDIUM NEUTRAL CITATION:	[2017] VCC 1909

REASONS FOR RULING
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Subject:Fixing of costs thrown away by reason of adjournment of Trial.  

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	The matter was determined on the basis of written submissions filed on behalf each of the parties.	Garland Hawthorn Brahe
For the First and Second Defendants	Colin Biggers & Paisley
For the Third Defendant	DLA Piper

HIS HONOUR:

1       I am called upon to fix the costs of the first and second named defendants thrown away by reason of the adjournment of the trial in this matter which was  fixed for hearing on 27 November 2017. I do so having read the submissions filed:

(i)    On behalf of the first defendant dated 12 December 2017;

(ii)  on behalf of the second and third defendant stated 12 December 2017;

(iii) the behalf of the plaintiff filed 14 December 2017.

2       In their submissions the defendants have sought the recovery at this time of preparation fees with respect to the adjourned trial and preparation fees which it is anticipated will be required for the trial fixed in this matter in February 2018.

3       In pressing their respective applications for future preparation fees each of the defendants have acknowledged the somewhat speculative nature of assessing the extent to which preparation will need to be repeated.

4       The first defendant seeks $9500 with respect to its estimated future preparation fees.

5       The second and third defendants seek $6522 with respect to those expenses the estimate of future preparation fees.

6       In my opinion, at this time it is appropriate when exercising my discretion as to the costs thrown away by reason of the adjournment to take no account of any preparation fees which were incurred for the preparation of the adjourned trial or which may be incurred with respect to trial fixed for 26 February 2018.

7       I make that statement

(i)    by reason of the fact that I am unable to fix with any degree of precision the extent to which the preparation with respect to the current trial has been lost or will need to be repeated in preparation for the new trial;

(ii)  having particular regard in this instance to my acknowledgement that by reason of the fact that the plaintiff is now represented the witness statements filed by him may be amended, the end result of that process being that the defendants may seek to file further witness statements.

8       In my opinion, in the unusual circumstances of the present case I should reserve to the Trial Judge the making of any order relevant to the recovery of the costs of both counsel and instructing solicitors associated with the preparation of:

(i)    the trial which was adjourned on 27 November 2017 and

(ii)  the trial fixed for 26 February 2018.

9       In the circumstances I am satisfied that I should fix the costs thrown away by reason of the adjournment of the trial as follows:

(i)    The first defendant:

a)    Counsel fees $5100;

b)    professional fees $8807.

(ii)  The second and third defendants:

a) Counsel fees Counsel fees $3600;

b)  Professional fees $6090.

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