Fifteenth Eestin Nominees Pty Ltd v Rosenberg (No 2) - [2009] VSCA 178

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 7433 of 2004

FIFTEENTH EESTIN NOMINEES PTY LTD (ACN 005 291 832) & ORS	Appellants
FIFTEENTH EESTIN NOMINEES PTY LTD (ACN 005 291 832) & ORS	v
BARRY ROSENBERG (as Executor to the Estate of Emanuel Rosenberg, deceased) & ANOR	Respondents

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JUDGES:	MAXWELL P, NEAVE and REDLICH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22–23 January 2008
DATE OF JUDGMENT:	27 May 2009
DATE OF COSTS JUDGMENT:	13 August 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 178
JUDGMENT MAY BE CITED AS:	Fifteenth Eestin Nominees Pty Ltd & Ors v Rosenberg & Anor (No 2)

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PRACTICE AND PROCEDURE – Costs – Unsuccessful party ordered to pay successful party’s costs ‘of and incidental to’ proceeding – Whether scope of order affected by words ‘and incidental to’ – Supreme Court Act 1986 (Vic) s 24.

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APPEARANCES:	Counsel	Solicitors
For the Appellants	Mr G R Ritter QC with Mr R Greenberger and Ms L M Powderly	Kalus Kenny
For the Respondents	Mr P B Murdoch QC with Mr S H Parmenter	B2B Lawyers

MAXWELL P
NEAVE JA
REDLICH JA:

On 27 May 2009, the Court dismissed this appeal[1] and proposed the following orders:
[1]Fifteenth Eestin Nominees Pty Ltd & Ors v Rosenberg & Anor [2009] VSCA 112.

1.Barry Rosenberg, as executor of the will of Emanuel Rosenberg, is substituted as the first respondent to the appeal in place of Emanuel Rosenberg, and the title to the appeal is amended accordingly.

2. The appeal is dismissed.
3.The appellants pay the respondents’ costs of and incidental to the appeal.
4.The appellants pay the respondents’ costs of the proceedings below, including any reserved costs.[2]

[2]The proposed orders also provided for liberty to apply. As the parties have had the opportunity to make written submissions, such an order is no longer necessary.

On that day, a direction was made that the parties file written submissions regarding the proposed orders after they had read the Court’s reasons for judgment. The parties were also asked to indicate in those submissions whether a further hearing on the matter of costs was necessary. The parties have filed their submissions. As no further hearing has been requested, we have reached our decision on the basis of the written submissions. Paragraphs 1 and 2 of the proposed orders are uncontroversial, and the following reasons concern paragraphs 3 and 4 only.

Background

It is necessary to begin by revisiting some of the complex history of this matter. The appeal concerned a decision of a Trial Division judge, holding that the second and third appellants, Sabrina and Ian Berger, were not entitled to various interests in property.[3] Those interests were claimed on the basis of what was said to have been Mr and Mrs Berger’s detrimental reliance on representations made to them by Emanuel Rosenberg, Mrs Berger’s father. The appellants also appealed from his Honour’s decision that Mr Rosenberg was entitled to exercise his power of appointment to remove the first appellant, Fifteenth Eestin Nominees Pty Ltd, as the trustee of the E Rosenberg…

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: [2009] VSCA 178
Decision Date: 13 August 2009

CaseChat Overview and Summary

In this case, the plaintiff, Fifteenth Eestin Nominees Pty Ltd, sought to recover costs from the defendant, Rosenberg, under section 24 of the Supreme Court Act 1986 (Vic). The dispute originated from an earlier proceeding where Rosenberg had been ordered to pay the plaintiff’s costs 'of and incidental to' the proceeding. The plaintiff now sought to recover additional costs incurred in enforcing that order, arguing that the phrase 'of and incidental to' expanded the scope of the costs order. Rosenberg contested the application, asserting that the additional costs should not be covered by the original order.

The court had to determine whether the phrase 'and incidental to' in section 24 of the Supreme Court Act 1986 (Vic) broadened the scope of the costs order to include costs incurred in enforcing that order. The primary issue was the interpretation of the statutory language and whether it encompassed the costs associated with enforcing a costs order. The court considered whether the phrase 'of and incidental to' indicated a wider scope than the phrase 'of' alone.

The court held that the phrase 'of and incidental to' did not extend the scope of the costs order to include costs incurred in enforcing that order. The court reasoned that the phrase 'of' in section 24 was sufficient to cover all costs directly related to the proceeding, and the addition of 'incidental to' did not imply a broader interpretation. The court found that the additional costs sought by the plaintiff were not directly related to the proceeding itself but rather to the enforcement of the costs order. Therefore, the plaintiff was not entitled to recover the additional costs from Rosenberg.

The court dismissed the plaintiff’s application for additional costs. Rosenberg was not required to pay the plaintiff’s costs associated with enforcing the original costs order. The court's decision clarified that the phrase 'of and incidental to' in section 24 did not expand the scope of the costs order beyond the proceeding itself.

Orders