Penson v Joseph John Gilles trading as Giles Payne & Co [2013] NSWSC 1796

Supreme Court New South Wales

Medium Neutral Citation: Penson v Joseph John Gilles trading as Giles Payne & Co [2013] NSWSC 1796 Hearing dates: On the papers Decision date: 04 December 2013 Jurisdiction: Common Law Before: Adams J Decision: (1) The application to reopen the hearing of 24 September 2013 in relation to costs is refused. (2) The plaintiffs are to pay the defendants' costs of and incidental to the application. Catchwords: PRACTICE AND PROCEDURE - costs - application to reopen case as to costs - no new material - matters already determined - application refused Category: Costs Parties: Shirley Penson (First Plaintiff) Aquaqueen International Pty Ltd (Second Plaintiff) Joseph John Gilles trading as Giles Payne & Co (First Defendant) Gregory George Eliades trading as Giles Payne & Co (Second Defendant) Representation: Counsel: E N Gramelis (Defendants) Solicitors: Self-represented (Plaintiffs) Giles Payne & Co (Defendants) File Number(s): 2013/110893

Judgment Introduction 1On 11 April 2013 the first and second plaintiffs filed a summons seeking relief in respect of a certificate of determination of costs dated 15 March 2012. On 3 June 2013 the plaintiffs sought leave to amend their summons. When the matter came on for hearing, Mr Gramelis of counsel for the defendants did not oppose to the filing of an amended summons but sought costs arising from the amendment on an indemnity basis and payable forthwith. It was not suggested that the defendants suffered or would be likely to suffer any prejudice arising out of the proposed amendments and, accordingly (there being no formal issues), leave was granted to file an amended summons subject to the question of costs and an undertaking to pay the filing fee, if any. 2Dealt with at the same time as the notice of motion seeking to file the amended summons was a notice of motion filed on behalf of the defendants seeking summary dismissal of the original summons or, alternatively, that it be struck out. The original summons was prepared by the plaintiffs without the assistance of legal advice and, plainly enough, was fundamentally flawed. The hearing 3Ms Penson (the second plaintiff and a director of the first plaintiff) appeared personally to support the plaintiffs' notice of motion. She said that the original summons was "filed of necessity because I was under pressure of costs enforcement proceedings in another court that's been mounted by the defendants". She said that the document was produced "under duress" and was her layperson's understanding of the correct mode of proceeding. She said that, after filing the original summons, it was pointed out by the Registrar when it came on for directions that the original summons was flawed and legal advice should be obtained to correct it. Ms Penson said that the proposed amended summons was the result. She said, in substance, that the defendants were then approached to consent to its being filed. She said that they informed her that they would file a notice of motion to strike out or summarily dismiss the plaintiffs' original summons and the plaintiffs should file their own notice of motion seeking leave to amend their summons. Orders to this effect were made by consent before Registrar Bradford on 20 May 2013. 4In answer to the defendants' application for costs, Ms Penson referred to attempts made in the previous 14 months on a number of occasions to settle the matter and also submitted that the amended summons benefited the defendants because it made the case which she wished to litigate more clear. I refused the defendants' application for indemnity costs, but considered that the conventional order as to costs where a party seeks indulgence of the court to amend a pleading should be made and accordingly made the following orders - (i)grant leave to file the amended summons subject to the plaintiff undertaking to file the summons in the Registry and pay the applicable fees; (ii)the plaintiffs are to pay the costs of the defendants thrown away by the amendment; (iii)those costs are to include the costs of and relating to the defendants' motion to strike out the summons; and (iv)the costs are to be paid immediately following assessment. Application to reopen 5On 25 September 2013 the plaintiffs wrote to me seeking liberty to raise again the question of costs on the ground that certain relevant facts were not brought to my attention at the hearing. The additional matters were, in substance, what was described as repeated attempts to invite consent by the defendants on a number of occasions in June 2013 and in the period leading up to 24 September 2013 which, had they been accepted, would have averted the costs associated with the hearing. It was also submitted that offers to settle the primary proceedings were made in June and September 2013 which, had they been accepted, also would have obviated the need for the hearing. 6On 26 September 2013 the plaintiffs' submission was forwarded to the defendants who were given an opportunity to file written submissions within seven days as to whether the question of costs should be reconsidered. After this period was extended by a few days, the defendants forwarded submissions in response to my direction. The defendants opposed any reconsideration of the question of costs. 7The defendants first submitted that the motions were heard and determined and the Court was accordingly functus officio. But, even if this were not strictly so given the interlocutory nature of the proceedings, the principle of finality required that, subject to very few exceptions, none of which presently applied, that the matter should be regarded as final. The defendants pointed to the fact that Ms Penson referred to offers having been made to the defendants in respect of the motions and could have tendered to the Court on 25 September, had she so wished, the letters attached to the application to reopen. No explanation was provided why this did not occur, although other documents showing various negotiations and offers were tendered. Accordingly, the correspondence relied on by the plaintiffs could not be regarded as either new or fresh. 8It appears from the correspondence attached to the plaintiffs' application that, in effect, the defendants had offered to consent to the filing of the amended summons with the issue of costs to be separately argued and proposed that the issue of costs should be resolved on the basis that they be costs be in the cause. 9On 29 June 2013 the plaintiffs forwarded to the defendants a draft short minute of orders which, in substance, (the language is a little awkward but the sense is clear enough) specified orders dismissing the defendants' notice of motion of 3 June 2013, granting leave to file the amended summons, a timetable for the filing and serving of further affidavits by the parties, liberty to seek directions on seven days' notice and reserving the question of costs. The defendants refused to agree to those proposed short minutes on the basis, as I understand it, that in some way it did not reflect the course of negotiations which had occurred. On 21 September 2013 the plaintiffs wrote again to the defendants. Reference was made to prior correspondence, the content of which is not clear, but one aspect of which was an attempt to resolve the whole matter in dispute by dealing also with the review determination in the Local Court which was the subject of primary dispute. The plaintiffs also, however, separately addressed the proceedings in this Court and, noting that the proposal of 29 June 2013 was rejected, "re-visited the issues and are prepared to consider consent as described in the following paragraphs" which set out the orders originally sought but added the condition that the defendants immediately withdrew or discontinued the Local Court proceedings and paid all costs associated with those proceedings including the costs in this Court related to the amended summons. The plaintiffs informed the defendants that, to save costs, they would not brief counsel to attend at the hearing and invited the defendants to take the same course. 10In the result, the plaintiffs' notice of motion sought an order that costs be reserved. As was made clear by Mr Gramelis at the hearing, in substance, he merely wished to press for an order for costs. Since there could be little doubt that the plaintiffs' original summons was seriously flawed and considering it necessarily involved costs, including the filing of a notice of motion to summarily dismiss it, a refusal by the defendants to pay those costs was reasonably the subject of appearance and submission and justified refusing to consent merely to the filing of the amended summons. The defendants seeking agreement or, failing that, an order, that the costs thrown away by the amendment should be paid by the plaintiffs was entirely reasonable. In light of the plaintiffs' refusal to agree, it was not inappropriate to seek an order to that effect. Conclusion 11In light of the interlocutory character of the proceedings, the Court has the discretion to reconsider its orders in appropriate circumstances, as when it appears that some matter has been overlooked or a mistake has been made and it appears that some positive injustice may have occurred. Had there been substance in the plaintiffs' application to re-open, I would have done so given that Ms Penson appeared in person. But it is clear that nothing new of any significance has been produced. Indeed, the material proffered by the plaintiffs confirms the correctness of the orders originally made. I am quite satisfied that no basis for reopening has been shown and accordingly I refuse to do so. Ancillary matters 12On 1 November 2013 the defendants' solicitor informed my associate, for my attention, that the amended summons had been filed on 25 September 2013 but no date has yet been set for further directions since it will only be done, it appears, if an order to that effect is made. The defendants' solicitor asked me to make this order so that the summons could be dealt with. Ms Penson responded by referring to what had transpired in the Local Court on the matter and made some comments about proceedings in that Court. This information is plainly irrelevant. Orders are unnecessary. I will make the appropriate arrangements with the Registry to ensure that appropriate procedures are undertaken to provide in due course for the hearing of the amended summons. 13In light of the outcome of the application to reopen, although it has been decided on submissions it is clear that the plaintiffs should pay the defendants' costs of and incidental to responding to it. Accordingly, I make the following orders - (1)The application to reopen the hearing of 24 September 2013 in relation to costs is refused. (2)The plaintiffs are to pay the defendants' costs of and incidental to the application.