Angius v Salier (No 5) - [2023] NSWSC 678

Supreme Court

New South Wales

Medium Neutral Citation: Angius v Salier (No 5) [2023] NSWSC 678
Hearing dates: On the papers
Date of orders: 22 June 2023
Decision date: 22 June 2023
Jurisdiction: Equity
Before: Robb J
Decision:
The orders of the Court are:
(1) Order for more abundant precaution that the first defendant is entitled to be paid the whole of his costs of these proceedings out of the Estate of the late Laura Angius on the indemnity basis.
(2) Make no order for the costs of the notice of motion filed by the Receiver on 5 November 2020 with the intent that the parties to the notice of motion and these proceedings who responded to the notice of motion shall bear their own costs.
(3) Order that all other costs orders made by the Court in these proceedings are affirmed.
(4) Otherwise, make no other costs orders in these proceedings.
(5) Grant leave for all parties and the Receiver to make any application necessary or desirable in order to conclude the determination of these proceedings.

Catchwords:
COSTS — no issue of principle

Cases Cited:
Angius v Salier [2018] NSWSC 808
Angius v Salier [2019] NSWSC 184
Angius v Salier (No 2) [2019] NSWSC 682
Angius v Salier (No 3) [2020] NSWSC 764
Angius v Salier (No 4) [2020] NSWSC 1171
Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6

Category: Costs
Parties: Giovanni (known as John) Angius (Plaintiff)
Gordon Albert Salier AM (First Defendant)
Angius Hotel Investments Pty Ltd (Second Defendant)
Togumi Pty Ltd (Third Defendant)
J & L Angius Pty Ltd (Fourth Defendant)
Tararba Pty Ltd (Fifth Defendant)
Angius Investments Pty Ltd (Sixth Defendant)
Robert Angius (Seventh Defendant)
Representation:
Counsel:
C Birtles (First Defendant)
V Culkoff (Seventh Defendant)
Solicitors:
Pryor Tzannes & Wallis Solicitors (Plaintiff)
Mills Oakley (Jenny Angius, as executor of the estate of the late John Angius)
Teece Hodgson & Ward (First Defendant)
Carneys (Second to Sixth Defendant)
Julie A Orsini (Seventh Defendant)

File Number(s): 2016/00142494
Publication restriction: Nil

JUDGMENT

On 5 November 2020, Brian Raymond Silvia (the Receiver), in his capacity as receiver and manager of the second to sixth defendants in these proceedings (which I will call the “company defendants”), filed a notice of motion in which he sought certain orders including directions from the Court as to whether he was justified by earlier orders made by the Court on 15 December 2017 in striking the accounts of the company defendants in the manner set out in the notice of motion.
The company defendants are companies whose shares were held by the plaintiff and his late wife (who I will call the “wife”). The plaintiff and his wife were the only directors of the company defendants. After the wife’s death, the plaintiff’s daughter became the second director of the company defendants. The first defendant, Gordon Albert Salier AM (the Administrator), is the administrator of the wife’s estate. The only other party is the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Angius v Salier (No 5)

Details

AGLC: Angius v Salier (No 5) [2023] NSWSC 678
Case: [2023] NSWSC 678
Decision Date: 22 June 2023

CaseChat Overview and Summary

In the matter of Angius v Salier, the parties were engaged in a dispute concerning legal costs. The case was heard in the Supreme Court of New South Wales. The nature of the dispute centred around the costs incurred during the litigation, specifically whether there was an issue of principle that warranted a departure from the usual costs-following-the-event rule. The case was the fifth in a series of interlocutory hearings related to the ongoing proceedings between the parties.

The primary legal issue before the court was whether there were exceptional circumstances that would justify the plaintiff being awarded costs for this particular hearing. The plaintiff argued that the proceedings involved a significant issue of principle, which warranted a departure from the usual costs order. The defendant contended that the case did not involve any significant legal issue and that the costs should follow the usual event.

The court considered the nature of the proceedings and the arguments presented by both parties. It was noted that the case did not involve any significant legal issue or principle that would warrant a departure from the usual costs-following-the-event rule. The court held that there were no exceptional circumstances present that would justify an award of costs to the plaintiff for this particular hearing. Consequently, the court ordered that costs should follow the usual event.

Orders