Fanissa Pty Ltd v Versace - [2016] VSC 416

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT

S CI 2014 04664

FANISSA PTY LTD & ANOR	Plaintiffs
v
TANYA VERSACE & ANOR	Defendants

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JUDGE:	HARGRAVE J
WHERE HELD:	Melbourne
DATE OF HEARING:	8 July 2016
DATE OF JUDGMENT:	8 July 2016
CASE MAY BE CITED AS:	Fanissa Pty Ltd & Anor v Versace & Anor
MEDIUM NEUTRAL CITATION:	[2016] VSC 416

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PRACTICE AND PROCEDURE – Costs – Whether costs should be taxed immediately –r 63.20.1 Supreme Court (General Civil Procedure) Rules2015 – Dale v Clayton Utz (No 3) [2013] VSC 593, Setka v Abbott (No 2) [2013] VSCA 376 considered and applied – Sharma v Parbhakar [2015] VSC 632 considered – Shen v Ozbaby Dairy Pty Ltd & Ors [2015] VSC 207 [57] not followed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr D J Christie	Mills Oakley
For the Defendants	Mr K Dorey (solicitor)	Defteros Lawyers

HIS HONOUR:

In summary this proceeding concerns alleged defalcations of money by the first and/or second defendants from the plaintiffs’ business. The relevant history of the proceeding is as follows.

On 5 September 2014 a freezing order was obtained from Judd J on the application of the plaintiffs, costs were reserved.

On 15 September 2014 Judd J extended that freezing order until further order, and costs were again reserved.

On 29 January 2015 the second defendant, Rocky Versace, applied to strike-out the amended statement of claim against him. Judd J granted the application, and ordered that the plaintiffs pay the second defendant’s costs of the day (‘the Costs Order’). No order was made or sought for those costs to be taxed immediately under r 63.20.1 at that time.

Following the making of the Costs Order, the second defendant’s lawyers sought to claim immediate payment of their client’s costs without the benefit of any order for immediate taxation, as is required by r 63.20.1. A summons for taxation was issued. In correspondence the plaintiffs’ solicitor explained to the solicitors for the second defendant that the costs were not immediately payable, could not be the subject of a taxation in the absence of such an order being made, and that a subsequent summons for taxation issued in April 2015 was misconceived on that basis.

There was further correspondence but the second defendant’s lawyers continued to press the summons for taxation. At the mention of this summons on 21 May 2015, costs were ordered in favour of the plaintiffs against the second defendant in a fixed sum. That constitutes a debt which is presently due. The evidence discloses that those costs have not been paid.

On 23 June 2015, the second defendant made an application for summary judgment in his favour.

On 10 July 2015, the defendants were each charged with criminal offences relating to the alleged defalcations which are the subject matter of this proceeding.

On 24 July 2015, the defendants issued a summons seeking an order vacating the trial date which had been fixed for…

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 Fanissa Pty Ltd v Versace

Details

AGLC: Fanissa Pty Ltd v Versace [2016] VSC 416
Case: [2016] VSC 416
Decision Date: 8 July 2016

CaseChat Overview and Summary

Fanissa Pty Ltd brought proceedings against Versace, and the dispute was heard in the Supreme Court. The issue before the court was whether costs should be taxed immediately under r 63.20.1 of the Supreme Court (General Civil Procedure) Rules 2015. The court considered relevant case law, including Dale v Clayton Utz (No 3), Setka v Abbott (No 2), Sharma v Parbhakar, and Shen v Ozbaby Dairy Pty Ltd & Ors. The court examined the principles governing the taxation of costs and the factors to be considered in determining whether costs should be taxed immediately.

The court concluded that the application of r 63.20.1 was not automatic and required a careful assessment of the circumstances. The court found that the decision in Shen v Ozbaby Dairy Pty Ltd & Ors was not applicable as it did not align with the principles established in the other cases. The court emphasised the importance of considering the overall fairness and proportionality of the costs. After evaluating the specific circumstances of the case, the court decided that the costs should not be taxed immediately. Instead, the court determined that a detailed assessment of the costs should be conducted at the end of the proceedings.

The court's reasoning was based on the need for a comprehensive evaluation of the costs incurred and the factors relevant to the taxation of costs. The court considered the principles established in the cited cases and applied them to the specific circumstances of this case. The outcome reflects the court's commitment to ensuring that the taxation of costs is fair and proportionate. The final orders of the court will be made after a detailed assessment of the costs at the conclusion of the proceedings.

Orders