El Zain v Vitrafy Life Sciences Ltd - [2025] VSC 144

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT
COMMERCIAL LIST

S ECI 2021 03631

BETWEEN:

EDWARD EL ZAIN	Plaintiff
and
VITRAFY LIFE SCIENCES LIMITED (ACN 622 720 254)	Defendant

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JUDGE:	M Osborne J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	28 March 2025
CASE MAY BE CITED AS:	El Zain v Vitrafy Life Sciences Ltd
MEDIUM NEUTRAL CITATION:	[2025] VSC 144

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PRACTICE AND PROCEDURE – Costs – Interlocutory matters – Taxation of costs – Whether costs should be taxed immediately – Exercise of discretion – Retrospective order – Supreme Court (General Civil Procedure) Rules 2015, rr 47.04, 63.20.1 – Dale v Clayton Utz (No 3) [2013] VSC 593 – Setka v Abbott (No 2) [2013] VSCA 376 – Hall v Nominal Defendant (1966) 117 CLR 423 – Fanissa Pty Ltd & Anor v Versace [2016] VSC 416.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Not applicable	Diakou Faigen Lawyers
For the Defendant	Not applicable	Minter Ellison

HIS HONOUR:

Background

The plaintiff, Edward El Zain (‘Mr El Zain’) commenced this proceeding against the defendant, Vitrafy Life Sciences Limited, (‘Vitrafy’), by writ filed 4 October 2021.

Mr El Zain and Vitrafy were parties to a memorandum of understanding entered into on 18 December 2018 (‘the MOU’). The MOU concerned intellectual property related to high-speed, ultra-low temperature chilling technology designed to preserve food and biological materials. The MOU’s stated purpose was to provide a framework for the facilitating and granting of an exclusive licence from Vitrafy to Mr El Zain.

The MOU was extended for 12 months by notice in writing given by Mr El Zain dated 29 December 2019 (‘the first notice’). It is common ground that the first notice was valid and effectively extended the term of the MOU for 12 months. Just prior to the expiry of the first extended term, Mr El Zain purported to further extend the period of the MOU by issuing a second notice dated 29 December 2020 (‘the second notice’). Vitrafy disputed the validity of the second notice, taking the position that the MOU could only be extended once.

Mr El Zain sought relief including a declaration that the second notice was valid and that the period of the MOU had been further extended by a period of 12 months, to 31 December 2021. Additionally, Mr El Zain also sought damages for alleged breaches of the MOU that occurred in the period prior to the giving of the second notice.

By 5 November 2021, I made orders by consent pursuant to r 47.04 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’) that the following question be tried as a separate question in the proceeding:

On its proper construction, does clause 4.7 of the MOU allow for more than one extension of the MOU?

The answer to the separate question would necessarily determine that part of Mr El Zain’s claim in which he sought declaratory relief as to 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.

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Details

Case: [2025] VSC 144
Decision Date: 28 March 2025

CaseChat Overview and Summary

El Zain v Vitrafy Life Sciences Ltd involves a dispute between the plaintiff, Mr. El Zain, and the defendant, Vitrafy Life Sciences Ltd, concerning the taxation of costs incurred in an interlocutory matter. The case was heard in the Supreme Court of Victoria. The central issue before the court was whether the costs should be taxed immediately or if the court should exercise its discretion to make a retrospective order for the taxation of costs. This issue arose under the Supreme Court (General Civil Procedure) Rules 2015, specifically rules 47.04 and 63.20.1.

The court considered several precedents to guide its decision. It examined Dale v Clayton Utz (No 3), Setka v Abbott (No 2), Hall v Nominal Defendant, and Fanissa Pty Ltd & Anor v Versace. These cases provided insight into the exercise of discretion in taxing costs and the principles governing retrospective orders. The court had to balance the need for efficient cost management with the fairness of the outcome to both parties. After careful deliberation, the court determined that the circumstances warranted a retrospective order for the taxation of costs.

In its reasoning, the court emphasised the importance of ensuring that the costs awarded reflected the true expenses incurred and that the outcome was fair to both parties. It noted that while immediate taxation of costs is generally preferred, there are exceptions where a retrospective order is more appropriate. The court concluded that the particular facts of the case justified a retrospective order to achieve a just result. The final orders of the court reflect this decision, providing guidance on the taxation of costs in similar future cases.

Orders