Winning Edge v Victorian Amateur Turf Club

[2010] VCC 1178

IN THE COUNTY COURT OF VICTORIA Revised

(Not) Restricted

AT MELBOURNE
COMMERCIAL LIST

EXPEDITED DIVISION

Case No. CI-09-02343

WINNING EDGE PRESENTATIONS PTY	Plaintiff
LTD
V
VICTORIAN AMATEUR TURF CLUB	Defendant

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JUDGE:	His Honour Judge Anderson
WHERE HELD:	Melbourne
DATE OF HEARING:	31 August 2010
DATE OF JUDGMENT:	31 August 2010
CASE MAY BE CITED AS:	Winning Edge v. Victorian Amateur Turf Club
MEDIUM NEUTRAL CITATION:	[2010] VCC 1178

REASONS FOR JUDGMENT

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Catchwords:  Practice and procedure – Plaintiff and defendant each successful on
certain issues – Setting off defendant’s entitlement against the plaintiff’s
entitlement – Net flow of monies to the plaintiff – Costs should be paid
by the defendant without deduction – In appropriate to apportion costs
on the basis of defendant’s success on limited issues.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M. Stirling	Baker Jones
For the Defendant	Mr M. Wise	Middletons
HIS HONOUR:

1          If we move through the issues that require determination. I will not allow interest on the plaintiff's invoice claim. I accept Mr Wise's submission that there is good cause to the contrary.

2          In relation to the claim for interest on damages, it only relates to the contract period. I accept Mr Wise's submission that the money became due over a period of time and there was an arrangement between the parties where contra payments were set off against each other during the course of the contract. I consider that in the present case the appropriate way to deal with the matter is to take one half of the damages for the relevant period and to allow interest on that sum.

3          In relation to the defendant's counterclaim, the overpayments, interest should be allowed on that sum as agreed between the parties and in the sum indicated by Mr Wise as the updated figure. Once those calculations have been done then there should be a setting off one against the other and I will simply enter judgment for the plaintiff against the defendant for the net sum.

4          It does not seem to me that there is any purpose in making separate orders on the claim and the counterclaim. This was essentially a claim which both parties in their pleadings, in the way the case was conducted and in the offers I have been informed about, treated it as ultimately a matter where the net flow of money from one party to the other was the most important consideration.

5          In relation to the question of costs, I consider that the most important and overriding factor which I should take account of is the fact that the net flow of money goes substantially to the plaintiff. It may be that the claim as pleaded was for a more substantial sum, in respect of which the plaintiffs have not been successful, but I do not consider that the claims were improperly inflated or that the claim that was pursued and in respect of which the plaintiff was successful was so different that it should be penalised in any way.

6          This was a case where the issues of liability and quantum were split and there were separate trials on those issues. The first trial on liability was decided in favour of the plaintiff. The second trial in respect of quantum, insofar as the net flow of money is concerned, was also decided in favour of the plaintiff. There were what in my view were minor issues decided in favour of the defendant. I do not consider they took much time during the course of evidence or argument.

7          At my suggestion, the experts consulted with each other and in this case that was a very successful process. From very early in the proceeding at the start of the first trial, it was apparent what the areas of dispute on issues of

quantum would be, if the plaintiff were successful on the question of liability. I
do not consider that this is an appropriate case to tease out separate issues,
particularly the issues I have decided in favour of the defendant and to make
an artificial apportionment of costs on the basis of which party won or lost on
those separate issues.

8          The issue of costs should be decided on the basis of my overall impression of the justice of the situation and the way in which the case was run both in the pleadings and at trial, and the fact that the plaintiff has been substantially successful and the defendant has had little success in the case.

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