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[2017] VCC 405
General information, not legal advice.
County Court of Victoria
2017-04-12
Mr J
Original judgment source is linked above.
1 The trial in this matter ran for eight days between 20 February and 1 March 2017. I delivered reasons for judgment on 17 March 2017 in which I found that the plaintiff had failed to prove his case. At the time I gave judgment, I arranged for the relisting of the proceeding on 27 March 2017 in case the parties could not agree upon the final orders for substantive relief and costs.
2 Because the parties could not agree upon the orders giving effect to my reasons, I now need to deal with the final trial orders and the issue of costs.
3 The unsuccessful plaintiff ("Hewitt") contended that I should re-examine my reasons for judgment and revise them so that he now succeeded in his claim. Hewitt submitted:
(a) Pollock was not present at the mediation in the matter which was held in December 2016;
(b) the defendant ("Count") had made a claim on its professional indemnity insurer and, as a result, the insurer also became a party to the proceeding;
(c) neither the insurer nor Pollock was present at the mediation when they ought to have been;
(d) at trial, I wrongly allowed Pollock to remain in court while Hewitt gave his evidence and was cross-examined. Hewitt said that Pollock should have been excluded from the court as it enabled him to hear the evidence of Hewitt before he, himself, gave evidence;
(e) by reason of the failure of Pollock and the insurer to attend the mediation and/or my failure to exclude Pollock from the court until he gave his evidence, the reasons for judgment delivered on 17 March 2017 should be reversed and there should be judgment for Hewitt, together with an order for costs.
4 Hewitt pointed out that until final orders were made, I had the power to reverse my judgment and said that it was cheaper and more efficient for me to do this rather than require Hewitt to go to the Court of Appeal where he would be successful in overturning my judgment and obtaining the decision he sought.
5 Count contended that because the plaintiff failed in his case, there should be judgment for the defendant and Hewitt should pay Count's costs of the proceeding.
6 Count, through its solicitor, filed and served an affidavit on 24 March 2017 setting out three Calderbank offers which it had made. There were three offers as follows:
(a) On 27 October 2014, Count made an offer to Hewitt that he discontinue his action and each party bear its own costs of the proceeding;
(b) On 5 May 2016, Count made an offer to pay Hewitt $60,000 inclusive of costs, interest and any GST in full and final settlement of his claim; and
(c) On 20 January 2017, Count made an offer to pay Hewitt $150,000 inclusive of all costs, interest and any GST in full and final settlement of his claim.
7 The plaintiff did not accept any of the Calderbank offers.
8 In reliance on these offers, Count contended that it should recover its costs on a party/party basis to 6 October 2014, on a standard basis from 7 October 2014 to 5 May 2016 and from 6 May 2016 on an indemnity basis. In submissions, Count advised the Court that it did not rely upon the first Calderbank offer as a basis for a special order as to costs. However, it did rely on the second and third offers.
9 The principles governing whether indemnity costs should be awarded in the event that a Calderbank offer is rejected are well established. In Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority (No. 2),[1] the Court of Appeal held that a court considering a submission that the rejection of a Calderbank offer was unreasonable should ordinarily have regard to at least the following matters:[2]
(a) the stage of the proceeding at which the offer was received;
(b) the time allowed to the offeree to consider the offer;
(d) the offeree's prospects of success, assessed as at the date of the offer;
(e) the clarity with which the terms of the offer were expressed;
(f) whether the offer foreshadowed an application for indemnity costs in the event of the offeree's rejecting it.
10 The Court of Appeal stated that there was no presumption that the party rejecting a Calderbank offer should pay the offeror's costs on a special basis if the offeree received a less favourable result. The court said the correct approach was to treat the rejection of the Calderbank offer as a matter to which the court should have regard.
11 The court fixed upon what it referred to as the "test of unreasonable rejection":
"in our view, these competing considerations can be sufficiently accommodated by a test of (un)reasonableness. The critical question is whether the rejection of the offer was unreasonable in the circumstances. We see no justification for a more stringent test such as "manifestly" or "plainly" unreasonable."__[3]
12 In Berrigan Shire Council v Ballerini (No. 2)[4] Nettle JA said this in relation to the test of unreasonable rejection:
"The question in each case is whether the offer was a reasonable offer of compromise, and whether the rejection of the offer was unreasonable, and the answer to that question turns in each case on all the circumstances of the case. The making of an offer and its rejection are but two albeit important circumstances to which the court will have regard in the exercise of its costs discretion. As the court explained in Hazeldene's Chicken Farm:
"The discretion with respect to costs must, like every other discretion, be exercised taking into account all relevant considerations and ignoring all irrelevant considerations. It is neither possible nor desirable to give an exhaustive list of relevant circumstances."[5]
13 The onus lies on the offeror to demonstrate the unreasonableness in the offeree's rejection of the offer.[6]
"This apparently simple test contains its own difficulties. The offeror who bears the burden of establishing this, is very often not in a position to demonstrate that the response of the offeree was or was not unreasonable. Whether this is so may depend upon the legal advice given to the offeree and to evidentiary uncertainties known only to that party. The offeror cannot know these matters without piercing the veil of professional privilege. Moreover, what is meant by unreasonable in this context? It is certainly not that the offeree's case was so hopeless that it might be struck out as an abuse of process. A clue to its meaning must be found in the policy behind the court's acceptance that an offer may be used in this way. This is of course to compel the offeree to consider seriously the offer by introducing into its decision-making process the prospect that a failure to accept it may in the appropriate circumstances attract a cost penalty. Where a party makes a Calderbank offer which is reasonable in all the circumstances, especially in comparison to the offeree's prospects of success or where the offeree's prospects of success were not good, the court has displayed a readiness to make a special order. As I observed in the Lorden Holdings case, the policy of the court is to encourage litigating parties to undertake genuine settlement negotiations and, for the purpose, to face up to serious offers of settlement.".
15 There is no general rule that the Calderbank offer must set out with specificity, the basis for the offeror's contention that the offeree should accept the compromise. Whether there is a need to do so depends upon a consideration of all the circumstances existing at the time of the offer.[9]
16 A comparison between the final outcome of the case and the terms of the compromise offered will generally be a significant matter in assessing the reasonableness of the offer. An offer of something considerably better than was ultimately obtained from the court, though not necessarily to be characterised as a reasonable offer, is more likely to be so characterised than an offer of something less than was ultimately obtained.[10]
17 The pursuit of a claim where the plaintiff, properly advised, should have known it had no chance of success, may enliven the discretion to make a special order for costs.[11] If a Calderbank offer is not accepted and the court orders indemnity costs, it is a matter of discretion as to the date upon which the indemnity costs order commences. In Auswest v DSE (No. 2),[12] the court ordered indemnity costs from the date of the expiry of the Calderbank offer.[13]
18 Count's offer by letter dated 5 May 2016 was in the following terms:
Dear Mr Hewitt
Count Financial Ltd ats Darren Hewitt (Count Court proceeding no.CI1402444)
5.1 Our client, Mr John Pollock/Pollock Accountants Pty Ltd ('his company') was never retained by you to provide any advice on whether you should retain your existing Ethane Pipeline Fund units (EPI Fund units), whether you should use available cash savings to purchase more EPI Fund units, or use a margin loan to purchase more EPI Fund units or at all;
5.2 At the meeting in late June 2007:
5.2.1 Mr Pollock provided our client's Financial Services Guide, Supplementary Financial Services Guide and the Terms of Engagement to you;
5.2.2 You acknowledged that you had 'received and understood the contents of the Supplementary Financial Guide to be read in conjunction with the Financial Services Guide Version 7'
5.2.3 You signed the Terms of Engagement on the following bases:
(A) 'No action needed now' as stated on the Terms of Engagement;
(B) You did not retain our client/Mr Pollock/his company to provide you with any general advice or personal advice within the meaning of section 766B of the Corporations Act 2001;
(C) Our client, Mr Pollock/his company did not charge you any fee or costs.
5.3 Further, at the meeting in or around late June 2007;
5.3.1 You indicated that you wanted to increase your investment in your existing single investment in the EPI Fund units because the yield was about 10% and the market price was not falling;
5.3.2 Mr Pollock did not provide any personal or general advice to you (within the meaning of section 766B of the Corporations Act 2001) on the EPI Fund units, your existing investment in the EPI fund units or your intention to increase your shareholding in the EPI Fund units;
5.3.3 You enquired about margin loans from CommSec to purchase more EPI Fund units;
5.3.4 Mr Pollock informed you that he could not give any advice on the CommSec margin loan as our client did not authorise its authorised representatives to provide any personal or general advice on that product within the meaning of section 766B of the Corporations Act 2001;
5.3.5 Mr Pollock did not provide any personal or general advice within the meaning of section 766B of the Corporations Act 2001 to you to purchase EPI Fund units through the use of CommSec margin loan or otherwise;
5.3.6 Mr Pollock did not provide any financial services (within the meaning of section 766A of the Corporations Act 2001 or section 12BAB of the ASIC Act 2001) to you or at all;
5.3.7 Mr Pollock did not provide any financial product advice within the meaning of section 766B(1) of the Corporations Act 2001 to you or at all;
5.4 Our client/Mr Pollock/his company was never retained by you to provide any financial product advice within the meaning of section 766B(3) of the Corporations Act or at all;
5.5 Our client/Mr Pollock/his company did not provide any personal advice (within the meaning of section 766B(3) of the Corporations Act 2001) to you on the EPI Fund units, your existing shareholding in the EPI Fund units, your intention to purchase more EPI Fund units, and the use of margin loans, whether CommSec or otherwise, to purchase EPI Fund units or at all.
5.6 Our client/Mr Pollock/his company did not provide any general advice (within the meaning of section 766B(4) of the Corporations Act 2001) to you on the EPI Fund units, your existing shareholding in the EPI Fund units, your intention to purchase more EPI Fund units, and the use of margin loans, whether CommSec or otherwise, to purchase EPI Fund units or at all.
5.7 Our client/Mr Pollock/his company did not provide any financial service within the meaning of section 12BAB of the ASIC Act 2001 to you or at all;
5.8 Our client/Mr Pollock/his company did not provide any financial service within the meaning of section 766A of the Corporations Act 2001 to you or at all;
5.9 Our client/Mr Pollock/his company did not charge any fees or costs to you;
5.10 Our client/Mr Pollock/his company did not receive any commission in relation to any trading activity by you through the sale or purchase of EPI Fund units or the use of margin loans to purchase EPI Fund units;
5.11 On 6 July 2007, Mr Pollock wrote to you by email that he "(did) not know the CommSec Margin loan details at all. The CommSec loan is not on the Count approved product list. I therefore am prohibited by law from advising on the product";
5.12 The email correspondence from Mr Pollock to you 7 July 2007, 10 July 2007, 4 August 2007, 5 August 2007, 7 November 2007, 9 November 2007 did not contain any personal or general advice to you or constitute personal or general advice within the meaning of section 766B of the Corporations Act 2001;
5.13 At all material times, our client did not authorise its authorised representatives to give personal or general advice (within the meaning of section 766B of the Corporations Act 2001) or provide financial services (within the meaning of section 766A of the Corporations Act or section 12BAB of the ASIC Act 2001) on the EPI Fund unit and the CommSec margin loan;
(a) you made your own independent decision to undertake each trade and / or trading transaction;
(b) you made your own independent decision whether each trade and/or trading transaction was appropriate or proper;
(c) At the time of each trade, you knew the risks of undertaking that trade or trading transaction;
(d) You made the decisions in relation to each of your trades and/or trading transactions.
10.1 Our client pays you the sum of $60,000 inclusive of costs, interest and any GST in full and final settlement of the proceeding no. CI-14-02444 (the settlement sum);
10.2 The settlement sum shall be paid within 14 days of your acceptance of this offer;
10.3 Upon payment of the settlement sum, you shall consent to the dismissal of the proceeding against our client forthwith;
10.4 Upon payment of the settlement sum, you release and discharge our client and its past and present directors, officers, employees, representatives and agents (including but not limited to Mr John Pollock and Pollock Accountants Pty Ltd) from any and all claims you have or may have had in respect of the matters stated and the allegations against our client / Mr Pollock / his company in the proceeding including the expert reports of Mr Peter Bolitho dated 29 Mach 2016, 11 April and 12 April 2016 and Mr Ronald Stepnell dated 20 April 2016;
10.5 The terms of this offer and settlement remain confidential save for disclosure to the parties' lawyers and insurers, if any, and any disclosure required by law.
19 I now consider the matters referred to in paragraph 9 in relation to the second Calderbank offer. I do not think that there are other specific factors pertinent to this case which could be taken into account.
20 Hewitt issued the proceeding in May 2014. Hence, the action had been on foot for about two years when Count made the second Calderbank offer. The offer followed discovery and the filing of expert reports by two of Hewitt's experts, Bolitho and Stepnell. As is apparent from the text of the offer, Count's solicitor provided a detailed critique of the case, setting out facts which Count contended were established objectively on the evidence. Count predicted the critical findings which the Court would make and the outcome of the litigation. These predictions proved to be generally correct.
21 Count made the offer at a time when the proceedings were reasonably well advanced and the parties had the opportunity to assess the evidentiary material supporting the rival contentions.
22 Count left the offer open for 14 days, being 19 May 2016 at 5.00pm. This constituted an adequate time for Hewitt to assess his position and make a decision. There was no suggestion that Hewitt required extra time or that he sought more details about the offer from Count.
23 Count claimed in its letter that Hewitt would fail in his action because Count would successfully defend the claims against it. In circumstances where Hewitt's claim at the time exceeded $1.5 million, an offer of $60,000 was relatively small. I note that the quantum of the claim varied because Hewitt changed the details of his claim from time to time as the evidence filed against him limited the options available to him. Count did not expressly refer to the length of the trial in its offer letter. However, experienced solicitors and counsel would be aware that cases involving self-represented litigants are often longer than the same case run by two represented parties. The self-represented litigant is usually less skilled than a barrister and has a less acute sense of relevance. Thus, most aspects of the case take longer. The position is aggravated by the requirement that the trial judge assist the self-represented litigant in order to give the person a fair hearing and to allow the person greater latitude than the court would not normally give a represented party.
24 Count's offer was significantly more than the demand in the first Calderbank offer that Hewitt effectively capitulate and walk away with no payment. Given that Hewitt did not file any affidavit material in relation to the Calderbank offers or ask for the opportunity to do so, I cannot say with great confidence:
(a) precisely when he was acting as a self-represented litigant and when and to what extent he had pro-bono assistance; and
(b) the extent, if any, of the cost liabilities Hewitt had to any legal representatives.
25 In assessing the prospects of success, it is fair to say that Hewitt quite properly thought that the meeting between him and Pollock on 28 June 2007 was of major significance in the case. Hence, credit would be crucial to this issue because there was not a substantial body of documentary material which provided a guiding context to this meeting. The issue of credit could easily generate considerable uncertainty and, at one level, make it difficult to assess the strength of a party's case.
26 For his part, Hewitt was convinced that he had received poor advice from Pollock and that the advice had caused him great harm. Hewitt held Pollock responsible for his economic plight where he had incurred debt, lost all his units and also lost the chance to purchase his own home.
27 The offer which Count made was clear and well capable of being understood by Hewitt. The offer was not ambiguous. Hewitt did not raise queries about the terms of the offer or seek clarification of any of its details.
28 The letter of offer by Count foreshadowed an application for indemnity costs if Hewitt rejected the offer. The offer also expressly suggested that Hewitt obtain advice from Mr Michael Gronow, his pro bono counsel, regarding the effect and implications of the offer.
29 In my view, it was not unreasonable for Hewitt to reject the second Calderbank offer.
30 First, credit was important in this case and the outcome of the critical issue regarding what took place at the meeting with Pollock in June 2007 could not be predicted with certainty in the absence of a trial. The finding on some important facts was dependent upon contested oral evidence.
31 Secondly, the prospects of success were uncertain at the time of the offer. This was due largely to the question of credit and partly to the complexity and unsettled state of the material, particularly the issue of quantum.
32 Thirdly, any concern which may have been raised by Count's reference to the FOS's conclusion that Hewitt's claim against Count "lacked substance" could have been assuaged by the fact that, following the receipt of FOS's ruling, Hewitt engaged legal representation through the firm of solicitors, Maurice Blackburn. If Hewitt's case was as hopeless as Count indicated, then Hewitt should have expected Maurice Blackburn to refuse to act for him or to tell him that his case was without merit.
33 Count's offer by letter dated 20 January 2017 was in the following terms:
"WITHOUT PREJUDICE SAVE AS TO COSTS
Dear Sirs
Darren Hewitt v Count Financial Limited CI-14-02444
1. Your client has made a number of allegations against our client in County Court proceeding number CI-14-02444) (the proceeding).
2. Our client has, in its further amended defence dated 9 June 2016, denied the allegations made by your client in the proceeding. Our client has filed and served expert reports in support of its defence.
3. In view of the matters pleaded in our client's further further amended defence and the expert reports filed by our client, it is confident of success in defending the allegations against it. Our client is confident that your client's proceeding against it will be dismissed by the Court after a hearing and your client ordered to pay our client's costs.
4. Nevertheless, in the interests of avoiding further costs in this matter, particularly, the costs of a hearing, our client is prepared to make the following offer to your client without any admission of liability:
4.1 Our client pays your client the sum of $150,000 inclusive of all costs, interests and any GST in full and final settlement of the proceeding ("the settlement sum"). The settlement sum is inclusive of all of your client's costs including but not limited to the costs of his former solicitors, Maurice Blackburn;
4.2 The settlement sum will be paid into the trust account of Moray & Agnew within 14 days of your client's written acceptance of this offer;
4.3 Upon payment of the settlement sum into the trust account of Moray & Agnew, your client releases our client and its past and present directors, officers, employees, representatives and agents (including but not limited to Mr John Pollock, Pollock Accountants Pty Ltd and any other entity associated with John Pollock) from any and all claims your client has or may have had in respect of the matters stated and the allegations against our client in the proceeding including the expert reports filed and/or served by your client;
4.4 Any payment to your client of the settlement sum or any part thereof will only be made (within 7 business days_ after the resolution, final determination or final adjudication (including any appeal proceeding) of the equitable lien asserted by Maurice Blackburn communicated to us in their emails dated 17 and 22 December 2015 (copies enclosed) by the Court or by agreement between your client and Maurice Blackburn;
4.5 Upon payment of the settlement sum into the trust account of Moray & Agnew, your client will discontinue the proceeding against our client forthwith;
4.6 The terms of this offer and settlement remain confidential save for disclosure by the parties' lawyers and insurers, if any, and any disclosure required by law.
6. We advise that should the above offer not be accepted and the proceeding continues to trial and your client falls to obtain judgment more favourable then the offer made, then our client shall produce this letter to the Court and seek an order for its costs on an indemnity basis from the date of this letter in accordance with the principles applied in the Court of Appeal decisions in Hazeldene's Chicken Farm Pty Limited v VWA (No.2) [2005] VSCA 298 and Settlement Group Pty Limited v Purcell Partners (No.2) [2014] VSCA 88."
34 Again, I consider the factors referred to in paragraph 9 above. In my opinion, there are no other factors specific to this case which require attention.
35 The offer was made on 20 January 2017 after the mediation and only about two months before trial. By this time, the parties had filed further expert evidence and they should have been well placed to make an informed assessment about the likely quantum of the dispute. The question of credit was still uncertain. However, by January 2017, Hewitt either knew or should have known that:
In short, by January 2017, Hewitt was in a position to know that, due to errors and inconsistencies in his own material, he was at risk on credit and that this situation could well harm his chances of success.
36 Also, by January 2017, the parties had conducted their mediation and they should have been reasonably well acquainted with both the case propounded by the other party and the potential weaknesses in their own case which the opposite party claimed to have identified. The offer could not have been made much closer to trial than it was.
37 Count allowed a period of 14 days for Hewitt to accept the offer. This was consistent with the time limit prescribed in Order 26 of the County Court Civil Procedure Rules 2008 (Vic) regarding offers of compromise and was sufficient time to consider the offer. As with the previous offer, there was no suggestion that Hewitt required extra time or sought more details about the offer from Count.
38 In the statement of claim dated 13 May 2014 the particulars of loss claimed by Hewitt were a loss on investments of $108,790, fees, interest and costs of $71,400. Hewitt also claimed (but did not attribute a figure to), damages for loss of the opportunity to make alternative investments, loss of the opportunity to generate capital growth on his capital, and mental anguish, personal insecurity and distress.
39 By further amended particulars of loss and damage dated 31 March 2016, Hewitt claimed that he had lost $90,510 on the forgone sale in September 2007 of his 43,100 units in MIT and another $90,647 in relation to payments associated with the margin loan.
40 In addition, Hewitt claimed $507,919 in connection with the failed property purchase which he would have made if properly advised and $1.035 million for the future loss of the financial benefit from that purchase over the ensuing 20 years. He also claimed compensation for mental anguish, personal insecurity and distress in the sum of $100,000. This gave a total quantum of $1.824 million.
41 In further amended particulars of loss and damage dated 18 November 2016, Hewitt made a claim similar to the March particulars of loss but the total quantum was $1.642 million. The main difference between the two sets of particulars was:
• the reduction in the claim for the lost benefit of future capital growth to $931,000 (from $1.035 million); and
• deletion of the claim for mental anguish, personal insecurity and distress of $100,000.
42 The final version of the particulars relied upon by Hewitt were dated 16 February 2017. This claim had a number of components:
• sale of his holding of 43,100 MIT units on 16 September 2007 which would have realised $90,510. This money would have been used as a deposit to purchase an investment property;
• fees, interests and costs on the margin loan of about $90,640;
• loss of opportunity to make alternative investments. This included a lost capital gain of $529,430 in relation to the property which Hewitt would have bought if properly advised but did not buy in fact;
• the receipt of rental income from boarders of about $216,350.
The final damages claim presented to the court excluded the claim for the lost benefit of future income valued at $931,000 which appeared in the November 2016 version of the claim.[15]
43 While there was a substantial difference between the amount offered by Count and Hewitt's claim, it was a substantial increase on Count's two earlier offers. Indeed, it represented an increase of about 150% on the second offer. While it was much less than Hewitt claimed, it nevertheless represented, in my view, an amount designed to attract Hewitt's attention and achieve a settlement. Because Count had strong views about the weakness of Hewitt's case (which were later proved correct), the offer seemed reasonably generous - even allowing for the legal fees which it seems that Hewitt incurred during the time he was represented. Certainly it was a markedly better outcome than Hewitt achieved at trial.
44 Hewitt remained confident of the strength of his case throughout the proceeding, including the period after judgment. He appeared surprised by the outcome. For whatever reason, either Hewitt failed to analyse and assess the possible weaknesses in his case or, if he were aware of them, either through his own efforts or as a result of advice from his advisors, he failed to take proper account of them. By the time Count made its third offer, Hewitt should have understood the details of his case, the risks he faced in relation to credit, and the impact which the court's failure to accept his evidence could have on his prospects of success.
45 The offer which Count made was unambiguous and well capable of being understood by Hewitt. Hewitt raised no queries about the terms of the offer and did not seek clarification with respect to any of its details.
46 The letter of offer by Count foreshadowed an application for indemnity costs if Hewitt rejected the offer.
47 In my view, it was unreasonable for Hewitt to reject the third Calderbank offer. As noted in the preceding discussion, by January 2017, Hewitt knew or should have known:
• the details of his claim and its potential strengths and weaknesses;
• the disputes between the experts and their potential effect on any potential damages claim.
48 Having regard to the risks and likely outcome of the litigation, it was unreasonable for Hewitt to reject the offer and to force the defendant to undergo an eight day trial where the ultimate outcome reflected to a large extent the earlier predictions which Count had made.
Revisiting the reasons for judgment given on 17 March 2017
49 In relation to Hewitt's request that I revisit and revise my judgment to reach the opposite conclusion, I decline to do so. If this is to occur, the Court of Appeal should do it.
50 Even if Hewitt's allegations are correct and neither Count (through Pollock or otherwise) nor the insurer was present at the mediation, it is not appropriate to complain of this after judgment has been delivered. If Hewitt's complaint is that their non-attendance made the mediation a useless exercise, he ought to have complained immediately afterwards and sought the court's assistance in ordering another mediation and awarding Hewitt the costs thrown away by reason of the wasted exercise. However, I have no reason to believe that the events at the mediation materially compromised the trial in a manner which merits me overturning my own decision (assuming I had the power to do so).
51 With respect to Hewitt's allegations about Pollock impermissibly being present in court while Hewitt gave evidence, I acknowledge that, to the extent my comments at trial implied that Pollock was a party, I misstated the position. Count was the defendant and Hewitt did not sue Pollock individually. However, Pollock was an authorised representative who was licensed to act as a financial advisor by reason of his association with Count. He was the critical person involved in the transaction with Hewitt and the person, who if disbelieved, would have caused the court to find Count liable to Hewitt. . Therefore, in a practical sense, Pollock was the representative of Count and, unless he was allowed to remain in court to watch the case and instruct Count's legal representatives, Count would have had no person in court able to provide instructions. Accordingly, I consider it was appropriate that Pollock be permitted to remain in court as Count's servant or agent for the purposes of conducting the trial.
52 Count asked me to certify a rate of $3,500 plus GST per day as appropriate for the appearance of counsel at trial. Mr Nixon, as counsel for Count, referred me to a decision of Forrest J Stone v Miller.[16] I understood Mr Nixon to contend that, by analogy, it was necessary for me to make the same order as Justice Forrest made in that case. Although I read the decision, I do not consider it is necessary for me to so certify. The request was unusual and I do not recall being asked to make any similar order in a Commercial Division matter. However, I am prepared to say that the proposed rate is reasonable and falls comfortably within the range of fees to be charged by junior counsel in a trial such as this.
53 Accordingly, having regard to the matters set out, I order that:
(b) there be judgment for the defendant against the plaintiff;
(c) the plaintiff pay the defendant's costs of the proceeding, including reserved costs, on a party/party basis until 6 October 2014, on a standard basis from 7 October 2014 to 3 February 2017 (being 14 days after the making of the third Calderbank offer) and from 4 February 2017 on an indemnity basis.
[4] [2006] VSCA 65. Refer also Chen v Chan [2009] VSCA 233 at [17].
[6] Foster v Galea (No. 2) [2008] VSC 331 at [9] per Byrne J. Refer also Love v State of Victoria & Anor. [2009] VSC 531 at [24].
[9] Refer Aljade & MKIC v OCBC [2004] VSC 351 at [87]; Hazeldene at [26]-[27]; and Love v State of Victoria & Anor (No. 2) [2009] VSC 531 at [20].
[11] Aljade & MCIK v OCBC [2004] VSC 351 at [30]- [31].
[12] Auswest v DSE (No.2) [2010] VSC 513.
[13] [2010] VSC 513 at [16].
[15] If Hewitt's claim succeeded, there would have to be deductions for margin loan funds which he used for personal expenditure.
Hewitt
Count Financial Limited
(2005) 13 VR 435