Wilbur v Bengasino

[2017] VCC 718

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMERCIAL DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CI-14-01868

ALFRED WAYNE WILBUR

     Plaintiff

v

JOSEPH BENGASINO

First Defendant

AND

FRANCIS BENGASINO T/AS WILDER MOSES BENGASINO

Second Defendant

JUDGE:

His Honour Judge Woodward

WHERE HELD:

Melbourne

DATE OF HEARING:

On the papers

DATE OF RULING:

MEDIUM NEUTRAL CITATION:

7 June 2017

[2017] VCC 718

RULING

1. This ruling should be read with my reasons for judgment in Wilbur v Bengasino (No 2) [2017] VCC 632 (“reasons”). Terms used in this ruling have the meaning given in the reasons.

1. In the reasons, I found that except for the costs order in his favour made by Judge Cosgrave and the costs of the application the subject of the reasons, there should be no “other order” within the meaning of r 63A.15, and the plaintiff Mr Wilbur should pay the costs of the proceeding including reserved costs, to be taxed on the standard basis in default of agreement.

1. So far as the costs of the application before me were concerned, I observed that I had not had the benefit of detailed submissions from either party on where those costs should lie. Subject to this, I stated that it seemed to me that WMB’s drafting infelicity that led to Mr Wilbur’s success before Judge Cosgrave has continued to have some limited currency. Having succeeded before Judge Cosgrave, it was not unreasonable for Mr Wilbur to have sought in the application before me further orders that reflected a similar approach. Mr Wilbur has been thwarted in that attempt primarily because he bore the onus of satisfying me that I should depart from the usual order as provided for in r 63A.15.  However, I also noted that the fact that Mr Wilbur has failed in the application would ordinarily result in an order that he pay the costs of the application in addition to the costs of the proceeding as a whole.

1. I went on to express my tentative view that the appropriate order on the costs of the application is that each party should bear their own, but invited any party who wished to make further submissions on the question of costs of the application to do so by filing written submissions.  I indicated that I would thereafter determine the costs of the application on the papers, unless either party persuaded me by their written submissions that a further short hearing was justified.  WMB duly filed written submissions seeking to persuade me that I should order that Mr Wilbur pay the costs of the application and Mr Wilbur filed written submissions in reply.  Neither party has sought a further hearing. 

1. Having considered both parties’ submissions, I propose to exercise my discretion consistently with the orders that I had foreshadowed in the reasons, essentially for the reasons set out in the submissions on behalf of Mr Wilbur.  On balance, I am satisfied that WMB’s failure to plead a complete LOA defence until a late stage in the proceeding had ongoing implications, at least in the sense that it left Mr Wilbur with a reasonable basis for challenging WMB’s application for the costs of the proceeding on discontinuance.  In my view, an order that the parties bear their own costs of the application accords with the first principle in Ferny Sky, namely, the desirability of encouraging reasonable conduct by the parties to litigation which furthers the expeditious and cost-effective resolution of disputes.

1. I will therefore to make orders as follows:

(a)     The plaintiff have leave wholly to discontinue this proceeding.

(b)     The plaintiff pay the costs of the proceeding including reserved costs, except for the costs that defendant was ordered by Judge Cosgrave to pay by order made 8 November 2016 and except for the costs of and incidental to this application, such costs to be taxed on the standard basis in default of agreement.

(c)     There be no order for costs of and incidental to this application.

- - -
Certificate

I certify that these 3 pages are a true copy of the reasons for Ruling of His Honour Judge Woodward delivered on 7 June 2017.

Dated:      7 June 2017

Simon Bobko

Associate to His Honour Judge Woodward