Victorian Legal Services Commissioner v Beling (No 2)

[2020] VCC 1071

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMERCIAL DIVISION

 Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CI-19-03745

FIONA RUTH MCLEAY AS VICTORIAN LEGAL SERVICES COMMISSIONER	Plaintiff
v
JOEL LORENSZ BELING	Defendant

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JUDGE:	HIS HONOUR JUDGE COSGRAVE
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF RULING:	23 July 2020
CASE MAY BE CITED AS:	Victorian Legal Services Commissioner v Beling (No 2)
MEDIUM NEUTRAL CITATION:	[2020] VCC 1071

REASONS FOR RULING
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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M.G. McNamara	White Cleland
For the Defendant	The defendant filed submissions on his own behalf.

HIS HONOUR:

1       On 14 July 2020, I delivered reasons for judgment in this matter (“the principal reasons”) in respect of the cross-applications by the Commissioner and Beling.  I reserved the parties’ rights to make further submissions on the question of costs and the form of final order.  I indicated that unless otherwise persuaded, I would resolve these two issues without an oral hearing.

2       The principal reasons explained why I:

(a)dismissed Beling’s application for summary judgment against the Commissioner, and also dismissed his application to strike out the Commissioner’s statement of claim;

(b)struck out Beling’s defence and counterclaim but allowed him the opportunity to replead.

By following this path, there was no need to make a decision about the Commissioner’s application for summary judgment against Beling.

3       Beling argued that costs should not follow the event in this case, and that the Commissioner should be deprived of her costs.  Rather, due to the conduct of the Commissioner and her alleged breaches of the Civil Procedure Act, Beling said that she should not only be deprived of an order for costs in her favour, but she should pay Beling’s disbursements.  Alternatively, he argued that the court should grant Beling a certificate under the Appeal Costs Act 1998 (Vic) to cover his costs and expenses.

4       While, in general terms, Beling’s statements of legal principle with respect to the award of costs were correct, I do not consider the alleged misconduct he cited justified the outcome he sought.  Beling’s submissions referred to events which allegedly occurred before this proceeding and in some, if not all, cases were raised in the VCAT proceedings, the Supreme Court proceedings, or this case.  These matters, a number of which have been rejected in any event, in my opinion do not provide a sound basis for displacing the general principle about costs following the event.

5       Beling’s application for summary judgment against the Commissioner failed, as did his application to strike out the Commissioner’s statement of claim.  While making due allowance for the broad discretion which the court has, I consider that the appropriate exercise of the discretion in this case is to order that Beling pay the Commissioner’s costs of and incidental to the failed application.

6       In relation to the Commissioner’s application, I granted that application insofar as it concerned the pleading defects and struck out Beling’s defence and counterclaim.  To that extent, the Commissioner’s succeeded in her application and Beling failed in opposing it.

7       Further, by granting Beling another opportunity to produce a compliant pleading, I granted him a significant indulgence.  Again, it is consistent with long-established practice to require a party receiving an indulgence to bear the costs of that indulgence.

8       In asking the court to reserve the Commissioner’s costs in relation to the Commissioner’s own successful application, the Commissioner sought a more limited order than she might otherwise have requested.  In my view, there is no proper basis upon which Beling could be entitled to his costs in respect of the strike-out of his defence and counterclaim.

9       Given that Beling has the chance to replead his defence and counterclaim, I consider it reasonable to adjourn the Commissioner’s summary judgment application so that the Commissioner does not have to file another summons if she seeks to challenge the next version of Beling’s pleading. Should the Commissioner wish to renew the summary judgment application, it might be appropriate to have it heard at the same time as Beling’s application for leave to file the latest version of his defence and counterclaim.

10      Accordingly, I make the following orders:

(a)the plaintiff’s application for summary judgment be adjourned to a date to be fixed, not before 13 August 2020;

(b)the defendant’s defence and counterclaim dated 26 November 2019 be struck out;

(c)the defendant’s summons filed 13 March 2020 be dismissed, and the defendant pay the plaintiff’s costs of and incidental to that application, such costs to be taxed on a standard basis in default of agreement;

(d)the defendant have leave to serve a proposed amended defence and counterclaim by 4.00pm on 3 August 2020;

(e)by 4.00pm on 10 August 2020 the plaintiff advise the defendant in writing whether the plaintiff consents to the defendant filing the proposed amended defence and counterclaim;

(f)if the plaintiff objects to the defendant filing the proposed amended defence and counterclaim, the defendant must apply by summons filed by 4.00pm on 13 August 2020 for leave to file the proposed amended defence and counterclaim;

(g)in the event that the defendant fails to comply with paragraphs (d) or (f) of these orders, the plaintiff shall be at liberty to enter default judgment against the defendant on her claim together with interest and costs;

(h)the plaintiff’s costs of and incidental to the plaintiff’s application filed 13 March 2020 be reserved.

Although the principal reasons set out a timetable for the future conduct of the proceeding, given that there has been some delay in producing a formal order, I have extended the time periods set out in the reasons by one week.