Plaintiff v Defendants

Plaintiff v Defendants - [2005] VSC 275 - VSC 2005 case summary — Zoe

[5]

(1) My concern is to assess the costs of each of the applicant defendants which have been incurred and are to be incurred from the mediation up to and including Day 1 of the trial. Notwithstanding this, the delays which have beset the earlier applications have meant that certain costs, which were not expected at the time when the evidence and submissions for those applications were presented, but which were incurred before the mediation took place, were not included in the February assessments. I refer to the costs associated with the further discovery lists produced by Premier since October 2004. I have, nevertheless, included them in these assessments.

(2) The onus of proving that the work was or will be done within the period and its reasonable cost on a party and party basis falls upon the applicant in each case.

(3) The aggregate of the amounts sought by the defendants is, on the face of it, enormous. This is, to some extent, the product of the decision of Premier to sue ten defendants rather than discriminating between all candidates. This is its forensic choice and it must abide the consequences of it.

(4) In making my assessments I have had regard to what I perceive at this stage to be the issues and the respective positions of the parties in the proceeding which I have been managing now for some 12 months.

(5) I have not and will not, for the purposes of these applications, descend into the detail of the work done and to be done by the defendants to prepare for trial. My task is not that of a Taxing Master confronted with a bill of costs; it is to make an estimate of what, in the light of the evidence before me and in the light of my familiarity with the case, is a fair amount to achieve to objective of an order for security. This not to provide a defendant with an indemnity for the expenses of defending the claims against it, but to provide it with protection against the risk that an order for party and party costs in its favour might not be satisfied.

(6) Having regard to the foregoing, I will not be troubled by any inconsistencies between my treatment of items in these applications and that for items in the earlier applications. I am undertaking nothing in the nature of a final determination of the costs to which the applicants might be entitled after a favourable judgment has been obtained. I have sought, nevertheless to be consistent as between the various claims although this has not been entirely possible given the differing approaches adopted by different parties.

(7) A substantial component of the costs estimates in these applications is that of obtaining experts' reports. I have not made any order limiting the number of expert witnesses which may be called by any party, but it may be that the conduct of the defences can and should be satisfactorily achieved by the sharing of witnesses whose reports, after all, have been made available to all parties. I am mindful, too, that much of the expert investigation which has been undertaken, particularly by Premier and the Spotless Parties, may be required and may be used for purposes other than for their claims against each other in this litigation.[6]

(8) The second substantial costs component is that of the inspection of discovered documents. I am sensitive to the possibility that the costs of this item may be uncertain given the generality of the evidence offered by the applicants in support.

(9) I will allow six directions hearings.

(10) I will allow ten days preparation for trial.

(11) I will allow for no more than two counsel at trial.

(12) I allow $6,000 per day for senior counsel for preparation and trial and $2,000 for junior counsel.

(13) I will allow $5.26 per page for copying and analysing expert witness statements and $1.78 for lay witness statements.

(14) For the reasons set out in para [10] below, I will allow $2.712 per folio for perusing and scanning documents produced upon discovery or subpoena.

(15) No order for electronic trial has been made and the parties do not appear to have agreed to conduct the trial electronically. Unless there is an order or some such agreement, I will not allow the costs which might be incurred in preparing an electronic database.

(16) Generally speaking, I have not looked into an item where the Premier accepts the amount claimed.

[11]

8 Apart from a very general statement that the Spotless Parties do not hold security for the work of inspecting these documents, it does not appear whether the inspection was done before or after the mediation and, if before, whether it was covered by the earlier order. Photocopying costs total $5,408.75. Accepting that 80% of the discovered material (50,060 folios) warranted perusal at $3.70 per folio, the cost of this is $185,222 and 20% (12,515 folios) scanned at $1.23 per folio is $15,393 On that basis, a figure of about $210,000 for this item may be justified on the evidence offered by the Spotless Parties. It does not appear how the remaining $250,000 is made up.

9 Ariel Weingart, the costs consultant engaged by Premier offers a critique of the Spotless Parties material, concluding that a figure of the order of $58,183 plus photocopying costs may be recoverable on taxation. The principal point of difference between his assessment and that offered by on behalf of the Spotless Parties is that he would have only 10,958 folios perused and the balance of 38,777 folios scanned. At the same rates, the costs for this would be $40,545 for perusals and $47,696, a total of $88,241. Add to this the copying charges and the items would be costed at $93,650.

10 I have not seen the documents and cannot assess the number of folios per page or which of them warrant perusal. It is clear, however, on the evidence before me that the very large sum claimed by the Spotless Parties is not justified. From the description of the documents I am inclined to prefer a figure very much less than that based on 80% perusal. I will allow 60%. This means that the amount allowed is $175,113, calculated as follows: 37,545 folios @ $3.70 = $138,917, plus 25,030 folios @ $1.23 = $30, 787, plus $5,409 for copying. For present purposes this means that the cost per folio for 60% perusal and 40% scanning is $2.712. I shall adopt this figure generally as being the best estimate of party and party costs for this work on the evidence which has been offered.

[117]

[1] Spotless Group Ltd, Ensign Services (Aust) Pty Ltd, but not including Spotless Services Ltd which was not added as a party until 17 December 2004.

[2] As amended on 17 March 2005

[3] A further $224,960

[4] A further $220,000

[5] [2005] VSC 19

[6] I have not ordered that security be provided in the VCAT proceeding. Security will not be ordered with respect to costs incurred in satisfying the requirements of the EPA or in prosecuting or defending claims between defendants.

[7] I will not allow costs which are already payable. Items 1 to 5, as costs thrown away by reason of an amendment, are recoverable from the amending party: R63.17.

[8] See para [10] below.

[9] 158 pages, 316 folios = $857 plus copying $26.07 = $883

[10] 6 folders, 4800 folios = $13,018 plus copying $584.87 = $13,602

[11] 5 folders, 4000 folios = $10,848 plus copying

[12] This is to, a large degree, speculative. Allowing for 7.8 folders as per Mr Weingart, 6250 folios @ $2.712 = $16,950. I allow $20,000.

[13] 1 folder, 800 folios = $2,170 plus $500 copying

[14] 2.5 folders, 2000 folios = $5,424 plus $1,000 copying

[15] 15.4 folders, 12,320 folios = $33,412 plus $6,000 copying

[16] This represents $5,322 per hearing including senior counsel, junior counsel, instructing solicitor and transcript for six directions hearings. This is more or less consistent with the claims of the other parties, allowing for the fact that it is reasonable for the Spotless parties to have two counsel at all directions hearings.

[17] 11 folders, 4,400 pages. Copying and analysing @ $5.26 = $23,144

[18] 7 folders, 2,800 pages. Copying and analysing @ $1.78 = $5,000

[19] 130 pages. Copying and analysing @ $5.26 = $684

[20] 3 folders, 1200 pages. Copying and analysing @ $5.26 = $6,312

[21] Seven defendants lay witnesses should occupy 3,500 pages. Copying and analysing @ $1.78 per page on average = $6,230

[22] No details provided of the work done.

[23] Deduction made for work done otherwise then for defending Premier claim.

[24] Five folders, 2,000 pages. Ms Lincoln estimates 80 hours for counsel and a similar number of hour for 2 solicitors. I accept this and allow $50,000

[25] The parties have not accepted that the trial be conducted as an electronic trial. Accordingly, this item is disallowed.

[26] This is a matter for the use only of the Spotless Parties.

[27] No details provided

[28] Includes 10 days preparation and day 1 of trial but not witnesses, which are included in item 21.

[29] I will not allow costs which are already payable. Items 1 - 4, as costs thrown away by reason of an amendment, are recoverable from the amending party: R63.17.

[30] It is not likely that interrogatories will be permitted.

[31] I accept the Grace estimate of 12 folios per document. 10,000 documents, 120,000 folios @ $2.712 = $325,440. My perception of the position of this party in the litigation is such that it would not require to incur costs of this item at the same rate as the Spotless Parties. I will therefore allow $200,000 only.

[32] I have allowed 6 directions hearings. Two hearings with senior and junior counsel @ $5,322 as to which, see fn 16 above. Four hearings with junior counsel alone @ $2,322. The total of $19,932 has been rounded off.

[33] Included in item 21.

[34] The costs of this application will be dealt with upon the making of the order. Accordingly they will not be part of the order for security. Items 12 -15 are disallowed.

[35] I will not allow costs which are already payable. Items 16 and 19, as costs thrown away by reason of an amendment, are recoverable from the amending party: R63.17.

[36] This item and item18 are included the allowance for item 8

[37] The amount claimed has been reduced because the expert will have the benefit of the reports of other expert with similar interests.

[38] This item and item 23 are included in items 24 and 25.

[39] Ten days preparation plus Day 1 of the trial at $6,000.

[40] Ten days preparation plus Day 1 of the trial at $2,000.

[41] I will not allow costs which are already payable. Items 1 to 3 and 33, as costs thrown away by reason of an amendment, are recoverable from the amending party: R63.17.

[42] This is not an expense in the proceeding between Premier and Keen Planning. I will not allow Items 4 - 22 for this reason.

[43] The costs of this application will be dealt with upon the making of the order. Accordingly they will not be part of the order for security. Item 31 is disallowed.

[44] See fn 32 above.

[45] 3,200 folios @ $2.712 = $8,678. No details of copying costs. I allow $800.

[46] 12,000 folios @ $2.712 = $32,544. My perception of the position of this party in the litigation is such that it would not require to incur costs of trial at the same rate as the Spotless Parties. I will therefore allow 50%. No details of copying costs. I allow $2,000.

[47] 52,000 folios @ $2.712 = $141,024. My perception of the position of this party in the litigation is such that it would not require to incur costs of trial at the same rate as the Spotless Parties. I will therefore allow 50%. No details of copying costs. I allow $15,000.

[48] 6,000 folios @ $2.712 = $16,272. My perception of the position of this party in the litigation is such that it would not require to incur costs of trial at the same rate as the Spotless Parties. I will therefore allow 50%. No details of copying costs. I allow $1500.

[49] This is a matter for the use only of Keen planning.

[50] Ten days at $6,000 per day.

[51] Ten days at $2,000 per day

[52] Solicitor's costs.

[53] I will not allow costs which are already payable. Items 1 to 5a, as costs thrown away by reason of an amendment, are recoverable from the amending party: R63.17.

[54] The original claim under this item was for $78,850 on the basis of 18 folders, i.e. 14,400 folios. At the rate which I have adopted, this would entitle Kilpatrick to $39,053. My perception of the position of this party in the litigation is such that it would not require to incur costs of trial at the same rate as the Spotless Parties. I will therefore allow 50%.

[55] I accept the approach of Mr Weingart that 50% perusal is reasonable.

[56] The parties have not accepted that the trial be conducted as an electronic trial. Accordingly, this item is disallowed.

[57] 5,000 pages @ $5.26 = $26,300

[58] No details provided. I allow the same amount as for the Spotless Parties item 17.

[59] No details provided. I allow the same amount as for the Spotless Parties item 20.

[60] No details provided. These costs are included in Item 14.

[61] No details provided. This is not an area where this defendant is expected to play a major role.

[62] No details provided

[63] I allow 10 days preparation and the first day of trial for two counsel.

[64] Costs allowed include Day 1 of Trial

[65] I allow a discount of 20% on the estimated party and party costs as in the first assessment.

At a glance

Court

Decision date

Before

Source

Judgment (117 paragraphs)

Parties