Frontier Assets Pty Ltd v Fishburn

Judgment 1HIS HONOUR : On 12 November 2010 William Paul Renton Wavish sought orders by notice of motion filed that day in these terms:

1. The subpoena issued at the request of the plaintiff to William Paul Renton Wavish dated 13 October 2010 be set aside.
2. The plaintiff pay Mr Wavish's costs of and incidental to this motion on an indemnity basis.
3. Such further order as the Court sees fit. 2When the matter came before me, counsel for Mr Wavish sought to file in Court and to rely upon an amended notice of motion in substantially different terms. It sought orders as follows:
4. The plaintiff pay Mr Wavish's costs of and incidental to this motion (Including his costs of and incidental to the subpoena issued at the request of the plaintiff to Mr Wavish dated 13 October 2010) on an indemnity basis in the amount of $84,179.87, or alternatively as assessed or agreed.
5. The plaintiff pay Mr Wavish's costs of and incidental to the subpoena issued to Mr Wavish's former solicitors Djekovic Hearne Walker by the plaintiff on 13 October 2010 in the amount of $15,418, or alternatively as assessed or agreed. 3It will be apparent that the difference was that the amended notice of motion sought the costs of compliance with the subpoenas, whereas the original notice of motion only (on the plaintiff's argument) sought the costs of the motion to set aside the subpoena issued to Mr Wavish. That motion was ultimately settled on 11 February 2011 when the subpoena was set aside by consent. The costs issue remains. 4The plaintiff at first opposed the filing of the amended notice of motion on two principal grounds. First, that Mr Wavish sought to have me determine the amount of the costs pursuant to UCPR 33.11 and that even though notice had been given of an intention to do so, the amount of the claim for these costs had increased from $75,961.05 as referred to in Mr Wavish's written submissions filed on 8 March 2011, so that the plaintiff was to that extent taken by surprise. Secondly, that the second prayer for relief was fundamentally misconceived in that the Court did not have power to make such an order, so that the application to amend was futile. 5By agreement between the parties following a useful discussion between counsel and me, the first issue dissipated. Mr George of counsel for the plaintiff indicated that he accepted that Mr Wavish was entitled to his reasonable costs of complying with the subpoena and, provided that I was not asked to fix the amount of the costs in a specified amount pursuant to UCPR 33.11, but that I instead direct the costs be fixed in accordance with the Court's usual procedure in relation to costs, he was content for the quantum of the costs claimed to be referred to a costs assessor in accordance with the rules. In those circumstances Mr Pike of counsel for Mr Wavish did not press for me to fix the amount of those costs and they are now to be referred to Ms Vine-Hall in a fashion that will be reflected in a consent order, which I will in due course be asked to make. 6The second issue remains to be determined by me. By way of background, Mr Wavish was at one time sued as the guarantor of a transaction entered into by the plaintiff for the sale of a property that it owned at Byron Bay. The purchaser defaulted and the contract went off. The plaintiff commenced proceedings for the recovery of the (unpaid) deposit but did not sue for loss of the bargain. It settled those proceedings, including an order made by consent that Mr Wavish pay the unpaid deposit in his capacity as a guarantor. (As a matter of coincidence, the professional indemnity insurer of his own solicitors in the original transaction met Mr Wavish's liability to the plaintiff in accordance with the settlement). The plaintiff commenced the present proceedings against its former legal representatives for negligence claiming that it had a claim for loss of the difference between the market price and the contract price of the land, for which the legal representatives negligently had made no claim in the original proceedings. Once the original proceedings were compromised, the plaintiff's ability to recover such losses from the purchaser or Mr Wavish was gone and its associated loss was crystallised. It issued the subject subpoenas in these proceedings in order to establish, if it could be established, that its claim against Mr Wavish would have been successful, in the sense that he could be shown to have had assets sufficient to meet the plaintiff's theoretical claim against him for damages, so as to be able to demonstrate that the alleged negligence of the solicitors caused the plaintiff to suffer loss. 7As appears above, the plaintiff did not ultimately take issue with the validity of the claim by Mr Wavish for the costs of complying with the subpoena issued to him personally. It does take issue with Mr Wavish's entitlement to the costs associated with compliance with the subpoena issued to his former solicitors. It is accepted that Mr Wavish has paid those costs even though he was not the party obliged by the terms of the subpoena to produce the documents sought or otherwise to respond to it. 8The subpoena is addressed to Milan Djekovic. Without being exhaustive, the subpoena seeks the production of all documents executed by Mr Djekovic as Mr Wavish's attorney, all documents concerning the execution of the original option by Mr Wavish, all documents concerning the proposed purchase of the land by Mr Wavish or his nominee and all documents concerning his execution of the guarantee. No issue arises before me about the width or the appropriateness of that subpoena in the circumstances. 9Mr Wavish instructed Gilbert + Tobin to review the documents referred to in the subpoena with respect to any possible claims for confidentiality or privilege. Gilbert + Tobin did that work. The documents were then provided by Djekovic Hearne Walker including privileged and confidential documents marked accordingly. They issued a bill for their work, which was paid by Mr Wavish. The plaintiff did not challenge in the proceedings the claims concerning the privileged or confidential nature of the documents that were produced. Mr Wavish contends that the documents sought in this subpoena could equally have been sought in the subpoena addressed to him personally.