Cocco v Treadtel International Pty Ltd & Anor [2019] NSWSC 31

Supreme Court New South Wales

Medium Neutral Citation: Cocco v Treadtel International Pty Ltd & Anor [2019] NSWSC 31 Hearing dates: 6 December 2018 Decision date: 31 January 2019 Jurisdiction: Equity - Corporations List Before: Black J Decision: COSTS – Application for costs of affidavit, correspondence and attendance at directions hearing dismissed. Catchwords: COSTS – Whether order for costs should be made in respect of preparation of affidavit, correspondence and attendance at directions hearing. Cases Cited: Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 Category: Costs Parties: Piero Cocco (Plaintiff) Treadtel International Pty Ltd (First Defendant) Richard Crosher (Second Defendant) Representation: Counsel: G P Gee (Plaintiff) D Robertson (Second Defendant)

Solicitors: Roland Ross (Plaintiff) Thompson Eslick (Second Defendant) File Number(s): 2014/205607

Judgment

Nature of the application and factual background 1. This is an application in respect of the costs of an affidavit, certain correspondence and attendance at a short directions hearing. Perversely, the parties will have incurred further costs in the pursuit of that application, which may well be disproportionate to the amount in issue in the claim for costs. 2. By way of background, on 24 August 2018, Brereton J noted that the Defendants had served their expert valuation evidence in these proceedings and made orders by consent that, inter alia, extended the time for the Plaintiff to serve any expert valuation evidence to no later than 31 October 2018; extended the time for the expert witnesses on the valuation to confer with each other and endeavour to reach agreement in relation to any matters in issue in accordance with UCPR 31.24 and deliver their joint reports to the parties' legal representatives to no later than 23 November 2018, or as ordered by the Court; and listed the proceedings for further directions before the Corporations Judge on 26 November 2018. The Plaintiff did not comply with the order that he serve his expert valuation evidence by 31 October 2018. On the afternoon of 23 November 2018, the last business day before the next directions hearing in the proceedings on 26 November 2018, the Plaintiff served that expert's report. 3. At that directions hearing, the Second Defendant sought an order that the Plaintiff pay his costs of the preparation of an affidavit dated 23 November 2018 of his solicitor, Mr Thompson, his costs of and incidental relating to communications referred to in several paragraphs of that affidavit, and of the Second Defendant's appearance at that directions hearing. Mr Thompson's affidavit dated 23 November 2018 comprises six pages of text and 33 pages of annexed correspondence. That affidavit was apparently prepared for the directions hearing on 26 November 2018, in anticipation that the Plaintiff's expert report would not be served, although that report was in fact served before that affidavit was completed. Mr Thompson there referred to the commencement of the proceedings in July 2014, to orders that were subsequently made in respect of expert evidence and correspondence concerning that matter, and to the service of the Defendants' expert valuation reports in August 2018. Mr Thompson also referred to the subsequent issue of subpoenas by the Plaintiff and to the production of documents in subpoena which continued into October 2018. Mr Thompson's affidavit also annexed correspondence between the solicitors for the Plaintiff and the Second Defendant in November 2018, as to which the Second Defendant also now seeks costs. It is not apparent to me that any attempt to take the Court through that correspondence, in the course of a busy Corporations Directions List, would have been productive, where it would have established no more than that there had been a delay in the service of the Plaintiff's expert evidence; the Second Defendant had objected to that delay; and steps would have needed to be taken at that directions hearing to address that delay, if it had not been resolved (as it was) by service of the expert's report before that directions hearing. 4. On 6 December 2018 I made further directions in this matter, including noting the Defendants had served their expert valuation evidence on 17 August 2018 and that the Plaintiff had served an expert valuation report on the afternoon of 23 November 2018. I also made directions for the service of further evidence and submissions as to the costs sought by the Second Defendant and reserved that question for judgment to be delivered in Chambers. 5. The Plaintiff in turn relies on the affidavit dated 12 December 2018 of his solicitor, Mr Patel. Mr Patel set out the history of production of the documents by the parties and referred to suggested inadequacies in production of documents by the Defendants and to the issue of subpoenas to which Mr Thompson had also referred. Mr Patel confirmed that he had not consented to a communication to the Corporations List Judge to restore the matter: "as it did not appear to [him] to be efficient to request an additional directions hearing at that stage, but rather to wait for the Plaintiff's expert report to be finalised, and then attempt to agree further directions prior to the directions hearing already scheduled for 26 November 2018". I will return to the position taken by Mr Patel in that regard below. Mr Patel also referred to a personal matter affecting him in early November 2018, although it is not apparent that it had any particular impact upon the continuing delay in service of the Plaintiff's expert's report.