Braham Investments Pty Ltd (ACN 107 954 629) v Charles Wantrup[No 2]
[2018] VSCA 352
•19 December 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2018 0025
| BRAHAM INVESTMENTS PTY LTD (ACN 107 954 629) | Appellant |
| v | |
| CHARLES WANTRUP [No 2] | Respondent |
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| JUDGES: | WHELAN, KYROU and McLEISH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | Determined on the papers |
| DATE OF JUDGMENT: | 19 December 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 352 |
| JUDGMENT APPEALED FROM: | [2017] VSC 801 (Digby J) |
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APPEAL – Costs – Appellant substantially successful – Appellant unsuccessful on some issues – Proposed grounds prolix and read more as detailed submission – Unnecessary costs incurred – One established error contributed to by appellant’s conduct of trial – Respondent ordered to pay 75 per cent of appellant’s costs of appeal.
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| APPEARANCES: | Counsel | Solicitors |
| No appearances |
WHELAN JA
KYROU JA
McLEISH JA:
On 12 November 2018 this Court delivered judgment on the application for leave to appeal and the appeal in this proceeding.[1]
[1][2018] VSCA 291 (‘the appeal judgment’).
Leave to appeal was granted on five of the six proposed grounds of appeal, and the appeal was allowed on four of the grounds for which leave was granted. Orders which had been made in the Trial Division were set aside and an order was made remitting the matter to the Trial Division for retrial before a different judge. Directions were made as to the filing of written submissions as to the costs of the application for leave to appeal and the appeal, and of the trial. The parties were advised that the issue of costs would be determined ‘on the papers’.
Outcome of the application for leave and the appeal
These reasons assume knowledge of the appeal judgment. The appeal succeeded because, in brief summary, this Court determined that:
(1)The trial judge had been wrong in his finding that no contemporaneous documents supported Mr Braham’s assertion that the funds in issue in the proceeding were to be held in trust until certain documentation was completed, and that the trial judge’s reasons had failed to refer to evidence in that respect which was uncontradicted, reasonable and inherently probable.
(2)The trial judge had failed to refer to evidence which was of critical importance in relation to Mr Giorgio’s credit, and had reached a finding concerning certain evidence of Mr Giorgio which was glaringly improbable.
(3)The trial judge had failed to adequately address the Wantrup & Associates’ trust records and Mr Wantrup’s credit in relation to them.[2]
These conclusions resulted in leave to appeal being granted and the appeal being allowed on proposed grounds 2, 3, 4 and 6.
[2]Ibid [251]–[266].
The appellant had sought to persuade the Court that findings ought to be made in its favour which would entitle it to judgment. This was the subject of proposed ground 5. The appellant failed in that endeavour, and leave to appeal was refused on that proposed ground.[3]
[3]Ibid [267]–[268].
Leave to appeal was granted on a proposed ground concerning an issue of legal principle. This was the subject of proposed ground 1. But the appeal was not allowed on that ground because, even if the error contended for had been made, it would not have affected the outcome if the trial judge’s factual findings had been otherwise upheld.[4]
[4]Ibid [269]–[284].
Submissions of the parties on costs
Both parties submitted that the costs of the trial should abide by the outcome of the retrial. That is the general rule, and we will make an order to that effect in this case.
In relation to the costs of the appeal, the appellant submitted that it had been substantially successful in the appeal and that costs should follow the event.
The respondent submitted that in this case costs of the appeal should not follow the event because the substantive issues between the parties are unresolved and there remains a real prospect that the appellant will fail upon a retrial. In the alternative, the respondent submitted that the costs ordered in favour of the appellant should be reduced by reason of a number of factors which we set out below.
We do not accept the respondent’s submission that costs should not follow the event because the issues between the parties remain unresolved. That will almost invariably be the case where a retrial is ordered after an appeal. The issues on the application for leave to appeal and the appeal have been resolved and, unless there is reason to adopt a different course, costs should follow the event.
The factors relied upon by the respondent in contending that the costs ordered in favour of the appellant in this case should be reduced are the following:
(a) The appellant challenged nearly every significant factual finding on a controversial issue made by the trial judge. Approximately 50 errors were asserted.
(b) In respect of some of the grounds, the appellant’s written case did not address the errors raised in the application for leave to appeal, but focused on other matters.
(c) This approach required substantial time to be spent in preparation for the appeal.
(d) The Court ultimately found that it was not necessary to address the ‘myriad of particular errors alleged’.
(e) The Court identified four significant factual issues which required determination and which were ultimately determined.
(f) The sole legal issue raised by the appellant was not ultimately determinative of the appeal.
(g) Of the four significant factual issues identified by the Court, the appellant succeeded on three issues, but failed on the fourth.
(h) The fourth issue was the trial judge’s rejection of Mr Braham’s evidence.
The respondent submitted that in the circumstances the costs should be reduced by 30 percent.
Should the costs be reduced?
In our opinion this is a case where there should be a reduction in the costs ordered in favour of the appellant. We have reached this conclusion for the following reasons:
(1)The criticisms made by the respondent of the appellant’s proposed grounds of appeal are well founded. As we observed in the appeal judgment, the proposed grounds were prolix and read more as a detailed submission than a statement of grounds.[5] The proposed grounds did not focus on the issues of real importance. The form in which they were drafted would inevitably have led to unnecessary costs being incurred, in our view.
(2)The appellant did fail to persuade the Court that findings entitling the appellant to judgment, as opposed to a retrial, could and should be made. That is why leave to appeal was refused on proposed ground 5.
(3)Whilst the appellant was granted leave to appeal on proposed ground 1, if that proposed ground had stood alone, the appeal would have failed because, given the factual findings made by the trial judge, the legal error asserted could not have affected the outcome.
(4)A significant issue upon which the appellant succeeded on appeal concerned the trial judge’s erroneous finding that there were no contemporaneous documents which supported the appellant’s case. As we explained in the appeal judgment, the significance of some of those documents was not emphasised or clearly explained before the trial judge and, some of them, which were important, were barely mentioned at all.[6] All of the documents were in evidence and they were all referred to at some stage during the trial, but at least part of the explanation for the error which we concluded had been made was, in our view, the fact that the appellant’s counsel did not emphasise or highlight those matters before the trial judge.
[5]Ibid [227].
[6]Ibid [257].
Conclusion
We have concluded that the costs ordered in favour of the appellant should be reduced by 25 per cent. We will accordingly order that the respondent pay the appellant 75 per cent of the costs of the application for leave to appeal and the appeal.
Other matters
There are two further matters we need to address.
The respondent seeks a certificate pursuant to s 4 of the Appeal Costs Act 1998. In our view that certificate should be granted, and we will do so.
The second matter concerns submissions made by the respondent on costs concerning Mr Braham’s evidence. At one point in the respondent’s submission reference is made to the trial judge’s rejection of Mr Braham’s evidence and it is said that there remains a ‘good prospect’ that the ‘same findings will be made by the remitter judge’. Leaving to one side the issue of whether the prospect is good or not, so much may be accepted. At another point in the submission, however, the respondent described the trial judge’s rejection of Mr Braham’s evidence as a ‘not insignificant hurdle’ standing in the way of the appellant’s ultimate success. As we explained in the appeal judgment, all the issues that were before the trial judge will form part of the subject matter of the retrial.[7] The trial judge’s prior findings do not constitute a ‘hurdle’ for either party.
[7]Ibid [286].
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