HIS HONOUR:
Nature of proceedings
The issue before the Court is an application by the defendant for the following orders:
1. Subject to existing costs orders, the plaintiffs to pay the costs incurred by the defendant between 27 February 2015 and 9 August 2016 on an indemnity basis payable forthwith.
2. The plaintiffs to pay the costs of the defendant thrown away in responding to the evidence referred to in Order (1) on an indemnity basis payable forthwith.
(The reference to Order (1) is a reference to expert and lay evidence served by the plaintiffs after 27 February 2015 and before 2 August 2016.)
The defendant was granted leave by the Court to make this application without the need to formally file and serve a Notice of Motion.
In support of the application, the defendant relies upon an affidavit of Dearne Keren Matheson, affirmed 1 March 2016.
Factual background
Some years ago, the two plaintiffs and companies associated with them, sought to develop property as a shopping centre in the Sydney suburb of Campbelltown. Pursuant to a written agreement, the defendant was retained as a leasing broker whose role was to find and introduce potential tenants of the centre.
The Global Financial Crisis adversely affected the project. The associated companies were placed in liquidation and the liquidators purported to assign any rights that those companies had as against the defendant to the plaintiffs.
In August 2011 the plaintiffs filed a Statement of Claim in this Court. Since that time the proceedings have not moved forward efficiently and no hearing date has been set. Even now it seems likely that the plaintiffs will seek to file more evidence and the defendant will need to file evidence in reply to that already filed and served by the plaintiffs.
On 6 August 2012 the plaintiffs filed an Amended Statement of Claim (the ASOC). That document alleged that the defendant breached its duty of care to the plaintiffs by failing to implement an adequate leasing strategy and structure in a timely manner. The ASOC alleged that the defendant as well failed to provide its services under the agreement with reasonable care, skill and diligence.
Wotton + Kearney (W + K) became the solicitors on the record for the defendant in July 2013. On 16 July 2013 W + K sent a letter to the plaintiffs' then lawyers, CMC Lawyers, noting that under the orders of the court made 9 May 2013 the plaintiffs were to serve their lay and expert evidence by 19 July 2013. On 24 July 2013 W + K sent a letter to CMC Lawyers advising, amongst other things, the need for the plaintiffs to amend the ASOC. On 9 August 2013 CMC Lawyers sent a letter to W + K saying that they anticipated receiving instructions to amend the ASOC.
On 19 September 2013 the plaintiffs served:
1. An affidavit sworn by Terry Bassal on 19 September 2013; and
2. An affidavit sworn by Bill Kanellopoulos on 19 September 2013.
On 23 September 2013 the proceedings were listed for directions, at the plaintiffs' request, before the Common Law Division Registrar and orders were made which included the following:
1. The plaintiffs to file a Further Amended Statement of Claim by 30 September 2013.
2. The plaintiffs to serve any additional lay affidavit evidence which they intended to rely upon by 21 October 2013.
3. The plaintiffs to serve any expert evidence they intended to rely upon by 28 October 2013; and
4. The matter be listed for directions on 11 November 2013.
On 4 October 2013 the plaintiffs filed a Further Amended Statement of Claim (the FASOC). On 8 October 2013 W + K sent a letter to CMC Lawyers regarding the plaintiff's non-compliance with court orders and advising that it would have been reasonable for the defendant to seek a guillotine order against the plaintiffs at the directions hearing on 23 September and noting that the proceedings had entered their third year, raising issues of fairness to the defendant.
The plaintiffs did not serve any lay or expert evidence by 21 October 2013 or 28 October 2013 respectively as required by the orders made by the Common Law Registrar on 23 September 2013.
On 4 November 2013 the plaintiffs served an affidavit of Mr Albert Bassal sworn on that date. On 11 November 2013 the proceedings were listed for directions before the Common Law Registrar and orders were made which included the following:
1. The plaintiffs to serve any expert evidence they intend to rely upon by 18 November 2013.
2. The plaintiffs to serve any additional lay affidavit evidence they intend to rely upon by 9 December 2013; and
3. The matter be listed for directions on 2 December 2013.
On or about 11 November 2013 the plaintiffs served an affidavit sworn by Mr Vince Carnovale on that date annexing an expert report by Mr Carnovale dated 1 November 2013. The plaintiffs did not serve any further lay or expert evidence as required by the orders of 11 November 2013.
On 2 December 2013 proceedings came before the Common Law Registrar when orders were made including:
1. Plaintiffs to serve any expert evidence that they intend to rely upon by 20 December 2013.
2. Plaintiffs to serve any additional lay evidence that they intend to rely upon by 30 January 2014.
3. The matter be listed for further directions on 3 February 2014.
On or about 31 January 2014 the plaintiffs served an expert report of Mr Ron Bransdon dated 21 November 2013. The plaintiffs did not serve any further lay or expert evidence as required by the orders of 2 December 2013.
On 3 February 2014 the proceedings were listed for directions before the Common Law Registrar when the following orders were made:
1. Plaintiffs to serve affidavits on which they rely by 17 February 2014.
2. Defendant to serve affidavits on which it relies by 30 May 2014.
3. The matter be listed for directions on 2 June 2014.
The plaintiffs did not serve any further evidence by 17 February 2014 as required by those orders.
On or about 28 May 2014, the plaintiffs served an affidavit sworn by Mr Francois George on 26 May 2014. On 29 May 2014 W + K sent a letter to CMC Lawyers asking for confirmation that the plaintiffs had then served the entirety of their evidence-in-chief and suggesting orders to be sought at the directions hearing on 2 June 2014.
On 2 June 2014 the proceedings were listed before the Common Law Registrar when the following orders were made:
1. The defendant to file and serve its evidence by 14 July 2014.
2. A mediation be undertaken by 25 August 2014.
3. The matter be listed for directions on 27 August 2014; and
4. Liberty to restore on 3 days' notice.
On 25 August 2014 the defendant served an affidavit of Mr Tom Brown sworn on that date.
On 27 August 2014 the proceedings were listed for directions before the Common Law Registrar when the following orders were made:
1. The defendant to serve any expert evidence by 5 September 2014.
2. The plaintiffs to file and serve any further affidavit evidence in reply by 19 September 2014.
3. The matter to be relisted for further directions on 3 October 2014; and
4. Liberty to restore on 24 hours' notice.
On 10 September 2014, the defendant served an expert report of Ms Kelly Cunningham, dated 9 September 2014. On or about 18 September 2014 the plaintiffs served a further affidavit by Mr Terry Bassal sworn 17 September 2014.
On 19 September 2014 W + K sent an email to CMC Lawyers asking for confirmation that the plaintiffs had no further evidence in reply to be served. On 23 September 2014 W + K sent a further email to CMC Lawyers again requesting confirmation that the plaintiffs had no further evidence in reply to be served. CMC Lawyers responded to W + K's email on 23 September 2014 purporting to reserve the plaintiffs' rights to serve further evidence.
An unsuccessful mediation took place on 26 September 2014.
On 3 October 2014 the proceedings were listed for directions before the Common Law Registrar when the following orders were made:
1. The Plaintiffs to file and serve any further evidence by 30 October 2014;
2. The defendant to file and serve any evidence in reply by 28 November 2014;
3. The matter be listed for further directions on 5 December 2014; and
4. Liberty to restore on 24 hours' notice.
By 2 December 2014 the plaintiffs had not served any further evidence. W+K sent an email to CMC Lawyers asking whether the plaintiffs intended to serve any further evidence, and, if so, when that evidence would be served. CMC Lawyers did not reply to that email.
On 5 December 2014 the proceedings were listed for directions before the Common Law Registrar when the following orders were made:
1. The plaintiffs to file and serve any further evidence by 15 January 2015;
2. The matter to be relisted for further directions on 13 February 2015; and
3. Liberty to restore on 24 hours' notice.
By 11 February 2015 the plaintiffs had not served any further evidence. W+K sent an email to CMC Lawyers regarding the plaintiffs' non-compliance with the above court orders and setting out the orders the defendant proposed to seek at the directions hearing on 13 February 2015. CMC Lawyers responded to W + K's email later that day. W + K responded to CMC Lawyers' email on 12 February 2015.
On 13 February 2015 the proceedings came before the Common Law Registrar when the following orders were made:
1. The plaintiffs to serve any further evidence by 27 February 2015.
2. The plaintiffs are not permitted to rely on any evidence not served by 27 February 2015 without leave of a Judge of this Court.
3. The plaintiffs pay the defendant's costs of the directions hearing.
4. The proceedings be stood over to 6 March 2015; and
5. Liberty to restore on 3 days notice.
On 27 February 2015 the plaintiffs served:
1. An affidavit of Mr Darryll Ashworth sworn 25 February 2015;
2. An affidavit of Mr Robert Hartman sworn 10 February 2015; and
3. A supplementary expert report of Mr Vince Carnovale dated 26 February 2015.
On 6 March 2015 the proceedings came before the Common Law Registrar and the following orders were made:
1. The defendant to file and serve any further evidence by 2 May 2015.
2. The matter be listed for directions on 8 May 2015 at which time the matter would be given a hearing date.
3. Liberty to restore on 3 days' notice.
On 27 April 2015 W + K sent a letter to CMC Lawyers requesting particulars of the plaintiffs' claim for damages. On 30 April 2015 the plaintiffs filed a Notice of Change of Solicitor appointing Mitry Lawyers in place of CMC Lawyers. On 7 May 2015 the defendant served a further affidavit of Mr Tom Brown sworn 4 May 2015. On the same date Mitry Lawyers sent a letter to W + K stating that the FASOC required further amendment.
On 8 May 2015 the proceedings came before the Common Law Registrar and orders were made including an order for the plaintiffs to circulate a draft Second Further Amended Statement of Claim (SFASOC) by 22 May 2015 and listing the matter for directions on 17 June 2015.
Between 20 May 2015 and 15 June 2015 W + K exchanged email correspondence with Mitry Lawyers regarding, amongst other things, the plaintiffs' non-compliance with the above orders.
On 16 June 2015 W + K sent an email to Mitry Lawyers regarding the matters discussed in the email correspondence referred to. On that same date, Mitry Lawyers sent W + K an email.
On 17 June 2015 the proceedings came before the Common Law Registrar and orders were made, including an order that the time within which the plaintiffs were to circulate a draft SFASOC be extended to 24 June 2015.
On 25 June 2015 Mitry Lawyers sent a copy of the proposed SFASOC to W + K. On 10 July 2015 W + K sent a letter to Mitry Lawyers advising that the defendant did not consent to the filing of the SFASOC. On 15 July 2015 the proceedings came before the Common Law Registrar and orders were made in respect of the service of a Notice of Motion seeking leave to file and serve the SFASOC and the service of evidence and submissions.
On 30 July 2015 the plaintiffs filed a Notice of Motion (the First Motion) seeking, inter alia, an order that the plaintiffs be granted leave to file and serve the proposed SFASOC and any further evidence in support of their claim. The First Motion was returnable on 27 August 2015.
On 27 August 2015 the proceedings came before Justice Garling, the Common Law Duty Judge, rather than the Common Law Registrar. Justice Garling indicated that the proceedings had been listed before him because the proceedings had been identified as one of several that required more intensive case management. His Honour listed the First Motion for hearing on 15 October 2015 and made orders in respect of that hearing and the service of further evidence and submissions.
The First Motion was heard before Justice Button on 15 October 2015. The SFASOC was different to the earlier Statements of Claim in that it alleged that the defendant was under a duty to negotiate and secure the best possible outcome for the plaintiffs under the agreement; that the defendant knew, or ought to have known, that there was a risk that the plaintiffs would suffer loss if that duty was breached; and that the defendant was in breach of its duty by failing to implement an appropriate leasing strategy in a timely manner and allocate sufficient human resources to identify, find and locate lessees.
The defendant opposed leave being granted for the filing of the SFASOC. Button J delivered judgment in relation to the First Motion on 27 November 2015. Button J ordered that the plaintiffs have leave to file the SFASOC. He ordered that within 28 days after the defendant filed its defence, the plaintiffs may by way of a Notice of Motion make an application to adduce any further evidence in the proceedings. He ordered the plaintiffs to pay the costs of the defendant thrown away by reason of the amendment but that the costs of the First Motion were to be the plaintiffs' costs in the cause. The matter was to be listed before the Common Law Registrar for directions on 5 February 2016.
On 3 December 2015 the plaintiffs filed the SFASOC. The defendant filed its defence to the SFASOC on 18 December 2015. On 15 January 2016 W + K received an email from Mitry Lawyers attaching a letter and a Notice of Motion (the Second Motion). The Second Motion sought leave for the plaintiffs to rely on the further evidence it intended to serve as contemplated by the orders of Justice Button.
On 5 February 2016 the proceedings came before the Common Law Registrar and the following orders were made:
1. The plaintiffs to serve any evidence in support of their Second Motion, including the evidence in respect of which leave is sought, by 12 February 2016;
2. The plaintiffs to provide documents referred to as not being particularised to the SFASOC by 12 February 2016; and
3. The matter be listed for directions on 26 February 2016 to set a date for the hearing of the Second Motion.
On 12 February 2016 Mitry Lawyers sent a letter to W + K which:
1. Served the affidavits of Mr Steven Kalamvokis (undated) and Mr Sinan Ergan (undated);
2. Explained that the plaintiffs had further evidence to be served and would therefore be unable to comply with the order of the Court.
3. Foreshadowed this further evidence to be from an unnamed number of "other retailers" and Messrs Kannellopoulos, Ashworth and Bassal on substantive issues and Mr Basal in support of the Second Motion.
On 17 February 2016 the plaintiffs served a further affidavit of Mr Bill Kannellopoulos, sworn 15 February 2016. On 17 February 2016 the plaintiffs served a further affidavit of Mr Darryll Ashworth, sworn 16 February 2016.
On 26 February 2016 the matter came before the Common Law Registrar. The defendant advised the Court that it intended to file a motion seeking to have the proceedings removed to the Commercial List in the Equity Division. It also advised that the orders made on the previous occasion had not been complied with but that this could be dealt with as part of the transfer application. The proceedings were adjourned by consent for a period of two weeks to 11 March 2016.
As of 1 March 2016 the plaintiffs had not complied with the orders of the Court made on 12 February 2016 in that they had not:
1. Served any evidence in support of the Second Motion, whether from Mr Bassal or anyone else;
2. Served the foreshadowed further evidence, the subject of the Second Motion, from the "other retailers" and Mr Bassal; or
3. Provided the documents referred to as not being particularised to the SFASOC.
Submissions
The defendant summarised the effect of the orders which it sought as follows:
1. That costs be awarded against the plaintiffs at an interlocutory stage;
2. That such costs be assessed on an indemnity basis.
3. That these costs be made payable forthwith rather than at the conclusion of the proceedings.
The defendant identified the principles on which it relied as follows:
1. In order that costs be paid on an indemnity basis requires the existence of some "delinquency" or conduct that is "plainly unreasonable" (Cabport Pty Ltd v Marinchek (No 2) [2013] NSWCA 131 at [6]).
2. For an interlocutory costs order to be made payable forthwith requires the presence of the following matters:
1. That the interlocutory decision involve the determination of a separately identifiable matter or can be viewed as the completion of a discrete aspect of the case.
2. Some conduct of the unsuccessful party that may be seen as unreasonable.
3. That there is still some considerable distance to go in the litigation so that it may be appropriate that the successful party obtain the fruits of its costs order at the present time; and
4. When exercising the discretion under r 42.7 of the Uniform Civil Procedure Rules 2005 (UCPR), regard must be had to the dictates of justice in accordance with s 58 of the Civil Procedure Act 2005 (CPA) which by extension includes having regard to ss 56 and 57 CPA (Pavlovic v Universal Music Australia Pty Ltd (No 2) [2016] NSWCA 31 at [14] - [18]).
The factors relied upon by the defendant in seeking the proposed costs orders were:
1. The overall delay by the plaintiffs in completing their evidence combined with the unsatisfactory nature of the explanation given for this delay constituted unreasonable conduct;
2. The costs orders sought relate to a discrete period of time (from 27 February 2015 to 9 August 2016) and a discrete task (the defendant having to revisit its evidence to determine its response to the latest incarnation of the plaintiffs' case);
3. That the proceedings still have some way to go with the defendant seeking until 29 November 2016 to respond to the plaintiffs' evidence and a hearing date is unlikely to be fixed until sometime in 2017 with the length of any hearing currently estimated at between 4 and 6 weeks.
4. The making of the costs orders sought by the defendant would be consistent with the dictates of justice.
The plaintiffs oppose the making of those costs orders. The basis for that opposition is that costs ordinarily follow the event and that no further costs order should be made in this matter until the litigation has been concluded.
The plaintiffs submit that the wounding of Terry Bassal on 7 March 2016 effectively prevented them from complying with court orders and completing the preparation and service of their evidence. In relation to the period before 7 March 2016 the plaintiffs submitted that most of 2015 was directed to obtaining amendments to the Statement of Claim which were opposed by the defendant. They submitted that it was not possible nor practical to complete the service of their evidence until the form of the SFASCOC was known.
The plaintiffs submitted that otherwise the delay and failure to comply with court orders was due to delinquency on the part of their previous solicitors and should not be held against them.
In a supplementary written submission the plaintiffs challenged the defendant's submission that it had incurred costs because of the need to revisit its evidence. The plaintiffs submitted that this was a step which the defendant had to take in any event and that any costs "thrown away" was a matter for the trial judge not for a decision at an interlocutory stage.
The plaintiffs submitted that at no time before March 2016 were the proceedings ever dormant or inactive. They submitted that most of 2015 was spent litigating the amendment to the SFASOC in which they were successful. They submitted that had the defendant consented to the amendments to the Statement of Claim, most of 2015 would have been spent on other aspects of the proceedings which would have moved forward. The plaintiffs submitted that even if they had been able to serve all of their evidence in 2015, once the amendments were allowed to the SFASOC it was necessary for them to serve further evidence.
The plaintiffs submitted that the mere passage of time did not entitle the defendant to its costs on either an ordinary or indemnity basis. While conceding that court time should not be wasted, the plaintiffs submitted that on occasions it is inevitable and unfortunate that delay will occur without fault on anyone's part. They submitted that sometimes fault was due to the conduct of a party's legal representatives for which the party should not be held responsible.
The plaintiffs submitted that costs orders were compensatory rather than penal. They should be made to compensate the party seeking them rather than to punish the party against whom the order is made. They submitted that while any unreasonable or unnecessary delay in the progress of legal proceedings ought be avoided, costs orders should not be used to punish the "guilty" party.
The plaintiffs submitted that the discretion to make an order for indemnity costs must be exercised judicially and be subject to careful reasoning. They submitted that caution should be exercised when making indemnity costs orders. They submitted that their delay in serving their evidence did not have any sufficient or unusual features which would justify the making of an indemnity costs order against them (Colgate-Palmolive Co v Cussons Pty Ltd [1993] FCA 801; 46 FCR 225 at 233-234). They submitted that in all the circumstances of this case the delay in serving their evidence in circumstances where it was likely that they would have to serve further evidence following the amendment to the Statement of Claim in November 2015 did not amount to "relevant delinquency" so as to justify an order for indemnity costs (Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 at [44]).
The plaintiffs submitted that although these proceedings were of a commercial nature, they (a father and son) had lost a substantial part of their assets and did not commence these proceedings in an attempt to make a profit but rather to seek compensation for what they submit was a significant wrong which had been done to them. They submitted that any costs order that is made payable forthwith was likely to stifle these proceedings especially if such an order were made on an indemnity basis.
Consideration
There was no issue between the parties as to the Court's power to make the orders sought by the defendant, i.e. ss 98(1) and (3) CPA and rules 42.2, 42.7 and 42.10 UCPR. With the exception of the requirement that the costs be paid forthwith, I have concluded that order 2 sought by the defendant should be made in its favour, i.e. that subject to existing costs orders, the plaintiffs should pay the costs incurred by the defendant between 27 February 2015 and 9 August 2016. I will in due course identify with greater precision the particular costs to which the order applies. I am not prepared, however, to order that the costs be payable forthwith nor am I prepared to make order 3 sought by the defendant. My reasons are as follows.
The defendant's complaint that the delay in this matter has been unreasonable is made out. In reaching that decision, I have taken into account the following matters.
The proceedings were commenced on 30 August 2011. The service of the plaintiffs' evidence was first ordered on 9 May 2013. Thereafter extensions continued to be granted until 2 June 2014 when it was thought that the plaintiffs had completed the service of their evidence and orders were made by the Court for the first time that the defendant serve its evidence in the proceedings. An order was made for the plaintiffs to serve any evidence in reply by 19 September 2014. Following an unsuccessful mediation on 26 September 2014, that time limit was extended.
By February 2015 the last evidence served by the plaintiffs was on 18 September 2014. This was despite the plaintiffs asserting that they wished to serve more evidence. It is clear from the orders made by the Common Law Registrar on 13 February 2015 that, not surprisingly, the Court had lost patience with the plaintiffs and that is why they were ordered to serve any further evidence upon which they wished to rely by 27 February 2015 and that they would not be permitted to rely upon any evidence not served by that date without the leave of a Judge of the Court.
This elicited further evidence which was served by that date. When Button J granted leave to the plaintiffs to rely upon the SFASOC on 27 November 2015 he did so on terms that required the service of any additional evidence by a specified time based on the date of filing of the Defence. This date was 15 January 2016. There was no evidence served by that date. Accordingly, when the matter came before the Common Law Registrar on 5 February 2016, the plaintiffs' position in relation to the service of further evidence remained the same as it had been when Button J made his orders on 27 November 2015.
On this occasion, the plaintiffs were given an extension of time of 7 days within which to serve not only the evidence in support of the second motion, but also the further evidence which was the subject of that motion. That time limit was not met. Accordingly on 7 March 2016 when Terry Bassal was shot, the plaintiffs were well and truly in default of the orders made by Button J on 27 November 2015 and by the Common Law Registrar on 5 February 2016. That was the position when the matter once again came before the Common Law Registrar on 26 February 2016.
When the matter came before me on 2 May 2016, a substantial adjournment of three months was granted because of the wounding of Terry Bassal. The plaintiffs continued to be in default of those orders.
Clearly the plaintiffs have made no attempt to comply with ss 56, 57 and 58 of the CPA. Up to the shooting of Terry Bassal, no explanation has been offered for the failure to comply with Court directions.
It follows that the plaintiffs should pay the costs of the defendant for the appearances before the Common Law Registrar and myself on the following dates. 27 February 2015, 6 March 2015, 5 February 2016, 26 February 2016 and 2 May 2016. Those costs should be paid on an indemnity basis. This is because of the plaintiffs' consistent failure to comply with Court orders as set out above and in the affidavit of Dearne Keren Matheson.
I am not prepared to order that those costs be paid forthwith. The defaults of the plaintiffs while substantial do not merit that kind of order at this stage. The matter has now advanced beyond the point when such an order might have been appropriate. There is some complexity in the calculation of these costs because at the same time as these abortive appearances took place, there was also some preparation occurring in relation to the application to amend the Statement of Claim. Moreover, the focus of the parties should now be on the timely preparation of these proceedings so that a hearing date can be allocated. This would not be assisted by a peripheral dispute as to what costs were properly payable and the calculation of such costs.
In relation to order 3, the defendant has frankly advised the Court that it is not in a position to calculate what costs have been thrown away by the late service of the material referred to in order 1 and that this may not be known for some time. In those circumstances I am not prepared to make an order for the payment of costs on some kind of anticipatory basis. In due course, if it can be established that costs have been thrown away by the late service of evidence, then an application for those costs can be made. It may well be, however, that the trial judge will be in the best position to make that assessment.
Nevertheless, the defendant has been substantially successful in its application and should have its costs of the argument before me on 12 August 2016. Those costs are payable on the ordinary basis.
[3]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 04 October 2016