Zoro Holdings Pty Ltd v Feo (No 2)
[2023] VCC 1828
•12 October 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMERCIAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-18-02898
| ZORO HOLDINGS PTY LTD (ACN 160 506 203) | Plaintiff |
| v | |
| ZORICA FEO | First Defendant |
| GIOVANNI FEO | Second Defendant |
| REGISTRAR OF TITLES VICTORIA | Third Defendant |
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JUDGE: | Judge Rozen | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 September 2023 | |
DATE OF JUDGMENT: | 12 October 2023 | |
CASE MAY BE CITED AS: | Zoro Holdings Pty Ltd v Feo & Ors (No 2) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1828 | |
REASONS FOR JUDGMENT
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Subject:Costs
Catchwords: Application to Lift Temporary Stay – Application for Pre-Trial Cross-Examination – Specific enforcement of contract for sale of land – Protracted litigation – Stay of civil proceedings – Stay should be lifted – Matter should proceed to trial
Legislation Cited: County Court Civil Procedure Rules 2018; Civil Procedure Act 2010 (Vic)
Cases Cited:Zoro Holdings Pty Ltd v Feo & Ors [2023] VCC 1689; Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29
Judgment: First defendant to pay the plaintiff’s costs of application
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S. Rosewarne KC & Mr H. Forrester | Livaditis Lawyers |
| For the First Defendant | Mr J. Evans KC & Mr P. Miller | TLM Law |
HIS HONOUR:
1On 20 September 2023, I published my reasons for lifting the stay previously ordered by the Court on the plaintiff’s claim and the first defendant’s counterclaim.[1] This decision assumes some familiarity with that decision.
[1] [2023] VCC 1689 (‘Principal Reasons’).
2I invited the parties to file written submissions concerning the orders that should be made in relation to the costs of the plaintiff’s application to lift the stay.
Submissions
3The Court has received written submissions from the plaintiff and the first defendant.
4In summary, the plaintiff submits that, as it succeeded in its application to lift the stay, ‘there is no good reason why costs should not follow the event’.[2] The plaintiff contends that the Orders I made on 20 September 2023 essentially replicate those proposed by his Honour Judicial Registrar Muller in his email to the parties on 8 May 2023.[3]
[2] Plaintiff’s Outline of Submissions on Costs dated 4 October 2023 at [2].
[3] See Principal Reasons at [26]-[27].
5As the Judicial Registrar’s view was informed by the affidavit of Deepak Jain filed on 8 May 2023, the plaintiff understandably does not seek its costs associated with the preparation of that affidavit. Rather, it seeks an order for its party/party costs for the considerable work involved in convincing me to make the Orders that JR Muller indicated he was prepared to make on 8 May 2023.
6The plaintiff points out that it was prepared to pay the first defendant’s costs thrown away in accordance with the process suggested by his Honour JR Muller on 8 May 2023.[4]
[4] Plaintiff’s Outline of Submissions on Costs dated 4 October 2023 at [4].
7Finally, the plaintiff submits that for that reason this is not a case where ‘costs in the proceeding’ is an appropriate outcome.[5]
[5] See County Court Civil Procedure Rules 2018, O 63A.20.
8The first defendant submits that the order ought to be that the plaintiff’s costs save for those associated with preparing Dr Jain’s affidavit should be costs in the proceeding.[6]
[6] First Defendant’s Submissions in Relation to the Costs of the Application by the Plaintiff to Lift the Stay dated 5 October 2023 at [1].
9The first defendant submits that my reasons for deciding to lift the stay ‘were clearly influenced by the flurry of activity to remedy what [I] rightly described as “serious failure on the part of the plaintiff to comply with the court’s orders in the past”’.[7]
[7] First Defendant’s Submissions in Relation to the Costs of the Application by the Plaintiff to Lift the Stay dated 5 October 2023 at [3].
10The ‘flurry of activity’ to which this submission refers is summarised at [55] and [60]-[61] of the Principal Reasons.
11The first defendant submits that the ‘where the grounds on which the decision was made were moved substantially by the last-minute conduct of [the plaintiff and its lawyers] … the appropriate order for costs would not be to reward Zoro by ordering that Mrs Feo pay its costs of the application to lift the stay’.[8]
[8] First Defendant’s Submissions in Relation to the Costs of the Application by the Plaintiff to Lift the Stay dated 5 October 2023 at [7] (emphasis added).
Consideration
12The court has a broad discretion in relation to costs. As with any discretion it is to be exercised judicially.
13The purpose of an order for costs is to provide a successful party in litigation with a partial indemnity for professional legal costs actually incurred in the conduct of the litigation.[9] The object of an award of costs is not to ‘reward’ that litigant.
[9] Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29 at [33].
14I accept the plaintiff’s contention that the orders made by the Court on 20 September 2023 are essentially what his Honour JR Muller had proposed on 8 May 2023 based largely on the same evidence considered by his Honour. While it is the case, as the first defendant submits, that subsequent events were relevant to the court’s decision to lift the stay, I do not accept that they were in any way decisive as the first defendant now submits.
15With all due respect, what his Honour JR Muller proposed on 8 May 2023 was entirely practical and sensible. The subsequent proceedings could easily have been avoided especially having regard to the obligations imposed on legal practitioners by the Civil Procedure Act 2010 (Vic).[10]
[10] See s 7.
16I order that the first defendant pay the plaintiff’s costs of its application to lift the stay on a standard basis (to be taxed in default of agreement) save for costs associated with preparing the affidavit of Dr Deepak Jain sworn 7 May 2023.
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Certificate
I certify that these 5 pages are a true copy of the ruling of His Honour Judge Rozen delivered on 12 October 2023.
Dated: 12 October 2023
Andrew Morrison
Associate to His Honour Judge Rozen
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