Victorian Civil and Administrative Tribunal|2011-07-22|Before: Ross J

The application was dismissed on the evidence, facts and circumstances before the tribunal in November 2008. Although it was not a matter I took into account in considering that application, it is noteworthy that it was made without the usual undertaking as to damages. It is appropriate costs be considered in that context. The recent Supreme Court decision is irrelevant having been made some two and a half years later and in a different proceeding.
The application for an asset preservation involved complex questions of fact and law including a determination of Seachange's objection to the tribunal's jurisdiction. Whilst neither party was particularly well prepared, I consider it fair and appropriate instance to exercise the tribunal's discretion under s109(2) having regard in particular to s109(3)(c) and (d), and order Bevnol to pay Seachange's costs of and incidental to this application. Again, noting my earlier comments, I am not persuaded there is anything so unusual about this application to persuade me that costs should be ordered on an indemnity basis.

Paul Mark Custodians Pty Ltd and Martin Jurblum are respectively the third and fourth respondents to counterclaim and with Dark Star by the Sea Pty Ltd are collectively referred to as the 'Jurblum' parties. As noted in my Reasons dated 26 November 2008, Dark Star by the Sea Pty Ltd was given leave to intervene in the hearing of Bevnol's application for an asset preservation order being

(a) solicitor's costs of appearing at Directions Hearing

(b) preparation by counsel and appearance at Directions Hearing

(c) preparation by solicitor and instructing at hearing

Inexplicably, Bevnol submits these costs should be reserved pending the final determination of the referred proceeding by the Supreme Court. I repeat my earlier comments.
Although I am satisfied it is fair to order Bevnol pay the Jurblum parties' costs I am not persuaded those costs should include the costs of instructing solicitor and counsel on 19 November 2008 as the involvement of the Jurblum parties was minimal. In the circumstances I will allow counsel's fees and fix the costs in the sum of $2,600.

[8] Although in the Submissions dated 5 November 2010 counsel for Bevnol asserts that Seachange's strike-out application was made by email to the tribunal on 3 June 2008 I have recorded in my Reasons of 12 December 2008 that this application was made on 15 September 2008.

[9] Seachange Management Pty Ltd v Bevnol Constructions &Developments Pty Ltd & Ors (Domestic Building) [2008] VCAT 2541

[10] Seachange Management Pty Ltd v Bevnol Constructions &Developments Pty Ltd & Ors (Domestic Building) [2008] VCAT 2629 (25 November 2008).

[11] De Simone v Bevnol Constructions & Developments Pty ltd [2009] VSCA 199

[12] Seachange Management Pty Ltd v Bevnol Constructions & Developments Pty Ltd & Ors [2008] VCAT 240

[13] Respondent's costs submissions dated 29 April 2011.

[14] Pital Business Pty Ltd v Seachange Management Pty Ltd per Efthim AsJ, 25 March 2011.

Seachange Management Pty Ltd (ACN 091 443 211) v Bevnol Constructions and Developments Pty Ltd (ACN 079 170 577) and Ors (Domestic Building) [2011] VCAT 1406 (22 July 2011)

Seachange Management Pty Ltd (ACN 091 443 211) v Bevnol Constructions and Developments Pty Ltd

At a glance

Court

Decision date

Before

Source

Judgment (19 paragraphs)

Parties

Cases Cited (2)

Seachange Management Pty Ltd (ACN 091 443 211) v Bevnol Constructions and Developments Pty Ltd (ACN 079 170 577) and Ors (Domestic Building) [2011] VCAT 1406 (22 July 2011)