Plaintiff v Defendants

Plaintiff v Defendants - [2006] VSC 32 - VSC 2006 case summary — Zoe

1 Judgments were previously delivered in this proceeding on 30 June 2005 ("the primary judgment"[1]) and 16 December 2005 ("the quantum judgment"[2]). On 16 December 2005, I adjourned the proceeding to enable the parties to consider their responses to the judgments and potentially submit orders for consideration. It transpired that the parties were unable to agree on the form of orders. Hence, the matter returns to the Court for further argument.

2 In the quantum judgment, I concluded that the plaintiff was entitled to its quantum meruit claim but, for the reasons stated, the matters of the delays, rectification and liquidated damages needed to be taken into account. I thereafter determined the quantum of amounts with respect to delays, liquidated damages, rectification and other claims, including variations and deduction variations and then interest. Finally, in the quantum judgment, I turned to the matter of whether the final orders should address amounts claimed and proved on an equitable set-off basis or a final balance approach. I determined the latter.

3 The proceeding returns with the parties continuing to pursue claims and, in a sense, revisit the reasons for judgment previously delivered. The plaintiff submits that the approach I have adopted with respect to delay costs and variations constitutes a double deduction. It is said that the deduction which should be made in respect of delay costs and variations ought be inclusive of overheads and profits, similar to the plaintiff's entitlement to its quantum meruit. For delay costs, the relevant figure is $184,153.19. With respect to variations, the figure is $25,324.99. The plaintiff, in support of its submission, relies on the evidence of Mr Tivendale.[3] The defendants protest that the plaintiff, in effect, seeks to revisit the evidence and dismantle part of the reasons for judgment. They argue that if the plaintiff is to re-open the evidence and the findings, then they wish to do likewise. The defendants, if necessary, therefore, seek to rely upon the evidence of Mr Lucas.[4] Furthermore, the defendants say that if any adjustment is made with respect to the plaintiff's profit and overheads it becomes necessary for the plaintiff to also "disgorge" all profit and overheads in the quantum meruit claim. There is considerable persuasion in that argument. In any event, I cannot be satisfied that any evidence has been identified, or new evidence adduced, to warrant disturbing the reasons already delivered.

4 In the interests of justice there needs to be finality to this proceeding. The plaintiff had ample opportunity on prior hearings to ventilate its position as to profit and overheads. It did not. The plaintiff cannot continue to revisit the findings, albeit on a selective basis. Hence, I conclude on the basis of the evidence before me and, furthermore, on the basis of the way the plaintiff has conducted its case, it is not open to the plaintiff to make the additional claim it does. I add that when the matter was last before the Court it was disposed of, in effect, on a final basis, subject to the arithmetical quantifications, the form of order and costs. The plaintiff, it seems, has seized the opportunity to open arguments that ought have been put on 4 and 8 August 2005 at the latest, or in all likelihood, more properly at trial.

5 Next, the plaintiff seeks allowance for loss of productivity in addition to the relevant amount already allowed. The additional amount sought is $24,480.00. On its face this appears to be a new claim, although, in the interests of accuracy, I note that in his evidence Mr Tivendale referred to his assessment of a 15 per cent loss of productivity.[5] Again, the plaintiff seeks to raise a matter that ought have been ventilated earlier. In any event, the claim is the subject of the earlier reasons. The defendants assert that if there is any entitlement to a productivity cost (and they do not so concede) it has been included in labour costs. It is not appropriate that I clarify my earlier reasons at this stage. They stand as they are. It remains that the plaintiff raises this matter too late, and its submissions inevitably involve revisiting my reasons. I am not satisfied that I should do so.

6 The plaintiff also claims interest at the rate of eight per cent. So much is conceded by the defendants and an amount is agreed, provided other sums in draft orders remain as stated, in the sum of $268,607.68, being calculated on a judgment sum of $641,970.96. Thus, on that basis the parties agree on the calculation of a judgment amount (subject to the additional claims raised today) of $910,578.64. However, the defendants claimed interest pursuant to clause 42.9 of the contract with respect to those aspects of their counterclaim and set-offs whereby they succeeded. Again, this is a new matter raised at the stage when the proceeding was moving to finalisation, in the sense that it was not earlier identified and clarified. It remains that the primary judgment included a finding that the subject contract was terminated by the defendant's conduct and thereby the plaintiff was discharged of its obligations under the contract. There cannot be an entitlement to the defendants under the contract so far as they succeeded, since it was not a right that they had already unconditionally acquired.[6] In any event, it is not usual to dissect claims into components and apportion interest. Obviously, the defendants do not seek interest under statute for the obvious reason that they will not have a judgment sum ordered in their favour (as considered in the quantum judgment).

7 The remaining matter is the question of costs. The defendants submitted that costs ought not follow the event in the usual way but, rather, that there should be a reduction to take account of the way the plaintiff conducted its case. It was also suggested that I should take account of the extent of the success of the defendants in the final judgment sum and apportion costs accordingly. There are two matters to be said about this. Firstly, there was nothing out of the ordinary in the way the plaintiff conducted its case. It was a complex and detailed matter and one in which the plaintiff, necessarily, had to set some areas out in considerable detail to assist the Court in understanding the issues. There is no basis to punish the plaintiff by deprivation of the usual costs order in this respect. Secondly, so far as the defendants succeeded, that matter was considered in the quantum judgment, pursuant to Rule 10.09 of the Supreme Court (General Civil Procedure) Rules 2005 and the authorities.[7] I proceeded to find that final orders ought be made on the basis of the balance owed. The position applies equally to the defendants' submissions on costs. Ultimately, the plaintiff succeeded on a "balance" sum. Accordingly, it is entitled to its costs, without discount. There was no suggestion by any party that costs ought be ordered on any basis other than party/party costs. Properly, these costs should include reserved costs. As for the costs of 4 and 8 August 2005, those costs should form part of the costs of the proceeding and follow the event, as indicated in these reasons.

8 I turn, then, to the final orders. On 16 December 2005, after delivery of the quantum reasons, I provided to the parties a draft document setting out the arithmetical amounts claimed for the purposes of checking. The only alteration relates to the calculation of interest as already adverted to. Thus, to formally state the calculations for final orders, they are as follows:

At a glance

Court

Decision date

Before

Source

Judgment (10 paragraphs)

Parties

Legislation Cited (8)

Cases Cited (2)