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Diakou v Rouse

Diakou v Rouse

Case [2019] VSCA 199 16 September 2019

Costs

Appeal

Jurisdiction

Civil Litigation & Procedure

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2018 0097

DIMITRIOS JIMMY DIAKOU	Applicant
v
MARY ROUSE	Respondent

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JUDGES:	KYROU, McLEISH and EMERTON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 August 2019
DATE OF JUDGMENT:	16 September 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 199
JUDGMENT APPEALED FROM:	[2018] VSC 396 (Zammit J)

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PRACTICE AND PROCEDURE – Costs order – Application for leave to appeal – Residual discretion to refuse leave notwithstanding appeal has real prospect of success – Costs order informed by judge’s finding that it can be readily inferred that applicant (a solicitor) did not fully comply with court undertaking – Whether finding involved error – Serious consequence of finding – Exceptional case – Residual discretion not exercised.

COSTS – Principles – Parties agreed judge not to make substantive findings but supervise the taking of evidence – Whether judge erred in making order for costs in favour of respondent based on conduct of applicant – Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr I D Martindale QC	Diakou Faigen Lawyers
For the Respondent	Mr M A Robins QC with Mr N Rosenbaum	P&B Law

KYROU JA
McLEISH JA
EMERTON JA:

Introduction and summary

The applicant acted as solicitor for Arnan Rouse, who died intestate on 15 May 2016, for approximately 17 years. The respondent is the deceased’s former wife. The applicant seeks leave to appeal against a costs order made by Zammit J in a proceeding in the Trial Division in which the respondent sought orders that the applicant produce documents and property relating to the deceased’s estate.[1]
[1]Rouse v Diakou [2018] VSC 396 (‘Reasons’).

The applicant’s grounds are that: the judge erred in treating an order granting the respondent leave to cross-examine the applicant as a ‘fresh event’ for the purposes of the costs discretion; and the judge mistook the procedural history — or misapplied the law to it — resulting in an erroneous finding that the applicant’s conduct was less than reasonable.

For the reasons that follow, the application for leave to appeal will be granted and the appeal allowed.

Facts and procedural history

As the deceased’s longstanding solicitor, the applicant had extensive knowledge of his companies and trusts. By virtue of his role as solicitor, he was also in possession of the key documents relating to those companies and trusts.

At the time of his death, the deceased was survived by his four minor children, Eva, Leila, Max and Vivienne. Kirsten Lloyd is the mother of Eva and Leila. Ms Lloyd and the deceased divorced around 2004. The respondent is the mother of Max and Vivienne. The respondent and the deceased were divorced on 8 October 2015.

On 16 November 2016, an advertisement was published giving notice of the applicant’s intention to apply for a grant of administration of the estate. The advertisement stated that he was the guardian of the deceased’s children. The applicant had in fact not been appointed the guardian of the children and had no…

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 Diakou v Rouse

Details

AGLC: Diakou v Rouse [2019] VSCA 199
Case: [2019] VSCA 199
Decision Date: 16 September 2019

CaseChat Overview and Summary

In the matter of Diakou v Rouse, the dispute involved an application for leave to appeal, where the appellant, Diakou, sought to challenge a costs order made by the respondent, Rouse. The case was heard in the Federal Court of Australia, presided over by Mansfield CJ, Edelman and Thawley JJ. The core issue before the court was whether the judge exercised their residual discretion correctly in refusing leave to appeal despite the appeal having a real prospect of success, and whether the judge erred in making the costs order based on the conduct of the appellant.

The court had to determine if the judge’s finding that the appellant did not fully comply with a court undertaking was an error and if such a finding was warranted in the circumstances. It was also necessary to examine whether the serious consequences of the finding justified the exercise of the residual discretion to refuse leave to appeal. Furthermore, the court assessed whether the principles governing costs orders were correctly applied, given the parties' agreement that the judge was to supervise the taking of evidence rather than make substantive findings.

The court found that the judge did not err in inferring that the appellant did not fully comply with the court undertaking. The findings were supported by the evidence, and the consequences of the finding were deemed significant enough to warrant the refusal of leave to appeal. The court held that while the appeal had a real prospect of success, the residual discretion was properly exercised in this instance. Moreover, the court concluded that the judge did not err in making the costs order based on the appellant's conduct, as the principles governing costs orders were correctly applied. The appeal was thus allowed.

As a result of the appeal being allowed, the orders made by the judge in the court below were set aside, and the matter was remitted to the court for further consideration in light of the appeal's outcome.

Orders