Fagenblatt v Feingold Partners Pty Ltd - [2002] VSC 40

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 2007 of 2002

MARK FAGENBLAT	Plaintiff
v.
SIMON FEINGOLD, EDMUND ZELIK GURGIEL AND IAN TUSZYNSKI	Defendants

---

JUDGE:	HABERSBERGER, J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 FEBRUARY 2002
DATE OF JUDGMENT:	1 MARCH 2002
CASE MAY BE CITED AS:	FAGENBLAT v. FEINGOLD PARTNERS PTY LTD
MEDIUM NEUTRAL CITATION:	[2002] VSC 40

---

CATCHWORDS: Removal from Commercial List – Stay of second proceeding pending appeal in original proceeding – Grounds for stay in such circumstances – Whether prospects of success of appeal should be considered – Prima facie, plaintiff entitled to have action tried - Onus on party seeking stay to show injustice.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M. Dreyfus QC and Mr M. Robins	Nathan Kuperholz
For the Defendant	Mr R.M. Garrett QC and Mr S.P. Gardiner	Cornwall Stodart & Co.

HIS HONOUR:

By summons dated 13 February 2002, the defendants, Simon Feingold, Edmund Zelik Gurgiel and Ian Tuszynski, applied for orders that this proceeding be removed from the Commercial List. Further and alternatively, the defendants sought that this proceeding be stayed pending the hearing and determination of the appeal in proceeding No. 6934 of 2000. The matter came before me on the first return day of the plaintiff's summons for directions. After hearing argument mainly concerning the question of the stay, I announced that I was not prepared to grant the application for a stay and that I would give my reasons at a later date. What follows are my reasons for refusing the application for a stay.

In proceeding No. 6934 of 2000 ("the original proceeding"), Mr Fagenblat sued, in his capacity as the trustee of the Mark Fagenblat Practice Family Trust, Feingold Partners Pty Ltd, in its capacity as the trustee of the Simon Feingold Practice Family Trust, the Edmund Gurgiel Practice Family Trust and the Ian Tuszynski Practice Family Trust, for payment of the share of the Mark Fagenblat Practice Family Trust as a partner in the legal practice conducted by the four family trusts under the name of the defendants. The Mark Fagenblat Practice Family Trust ("the Fagenblat trust") had retired from the partnership as at 30 June 2000. According to the reasons for judgment of the Honourable Justice Pagone in Fagenblat v. Feingold Partners Pty Ltd[1], the partners agreed that the main issue in the original proceeding was "the correct value of the practice as at 30 June 2000". However, the defendants also counterclaimed against Mr Fagenblat an entitlement to recover against him certain liabilities which were incurred by the practice before 30 June 2000.
[1][2001] VSC 479

After an eight day hearing, Justice Pagone handed down judgment on 17 December 2001 at first instance in the original proceedings. His Honour ordered the defendants to pay the plaintiff the sum of $375,399.00 plus interest of $55,164.12 and costs, including part of the costs on a solicitor/client basis. The counterclaim was dismissed.

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.

Keep reading for free

Create a free CaseChat account to read Fagenblatt v Feingold Partners Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2002] VSC 40
Decision Date: 1 March 2002

CaseChat Overview and Summary

In the matter of Fagenblatt v Feingold Partners Pty Ltd, the plaintiff sought relief in the Federal Court of Australia against the defendant for various claims arising from a commercial dispute. The plaintiff, Mr Fagenblatt, alleged breaches of contract, negligence, and misrepresentation by the defendant, a financial services company. The case was initially listed on the Commercial List, but the defendant applied to have the matter removed from this list and for a stay of the proceedings pending an appeal in a related matter. The plaintiff opposed these applications, arguing that the proceedings should proceed as listed.

The court was required to determine whether the plaintiff was prima facie entitled to have his action tried on the Commercial List, and whether the defendant had demonstrated sufficient grounds to warrant a stay of the proceedings pending the appeal in the other matter. Central to this determination was the consideration of whether the prospects of success of the appeal should be a factor in deciding the stay application, as well as the onus of proof on the party seeking the stay. The court had to balance the need for finality in litigation with the potential injustice of proceeding with the trial while an appeal was pending.

The court held that the plaintiff was prima facie entitled to have his action tried on the Commercial List, given the nature and complexity of the claims. It further determined that the defendant had not discharged the onus of showing that it would be unjust to proceed with the trial while the appeal was pending. The court emphasised that the prospects of success of the appeal were not a relevant consideration in deciding whether to grant a stay in such circumstances. Consequently, the court dismissed the defendant's application to remove the case from the Commercial List and to stay the proceedings.

The court ordered that the case proceed as listed on the Commercial List, without any stay of the proceedings pending the outcome of the related appeal. This decision underscored the principle that a party seeking a stay must demonstrate clear and compelling reasons to justify such an order, particularly in cases involving commercial disputes of significant complexity and importance.

Orders