French v Smith - [2005] VSCA 114

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 2237 of 1996

WALTER MURDOCH FRENCH & ORS
	Appellants
v.
MICHAEL ROSS SMITH & ORS	Respondents

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JUDGES:	CHARLES and CHERNOV, JJ.A. and HARPER, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 March 2005
DATE OF JUDGMENT:	11 May 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 114

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JUDGMENT – Cost of trial and appeal – Whether costs should follow the event – Costs in each case to lie where they fall.

JUDGMENT – Interest on judgment – Penalty interest – Date from which penalty interest is payable – Principal sum upon which penalty interest is to be calculated – Relevance of payments by defendant to successful plaintiff and into joint account maintained by solicitors for both parties – Supreme Court Act 1986 s.101.

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APPEARANCES:	Counsel	Solicitors
For the 1^st and 2^nd Appellants	Mr P.J. Bick, Q.C. with Mr D.J. Farrands	Norton Gledhill
For the 1^st, 3^rd and 4^th Respondents	Mr C. Gunst, Q.C. with Mr S.G.E. McLeish	Middletons
For the 2^nd Respondent	In person

CHARLES, J.A.:
CHERNOV, J.A.:
HARPER, A.J.A.:

Towards the end of a trial which occupied 56 sitting days before a judge of this Court, the plaintiffs, in written submissions, summarised their then claims. We refer to them in more detail below. It is sufficient for the present to record that they were large. The great majority of the monetary sums to which the plaintiffs asserted entitlement were attributed to the profits said to have been generated by a joint venture the existence of which was strongly pressed by the plaintiffs and equally strongly disputed by the defendants. According to the plaintiffs, the parties to the alleged joint venture were the first and second plaintiffs (respectively, Michael Ross Smith and Mark Anthony McCallum) and the first defendant (Walter Murdoch French).

The existence or otherwise of the joint venture occupied a substantial proportion of the time taken at trial. The other principal issue at trial, and a principal issue on appeal, was whether the first defendant (French), the fourth defendant (Ballarto Pastoral Pty. Ltd.) (“Ballarto”), and the seventh defendant (Quarry View Pty. Ltd.) (“Quarry View”) should succeed on their counterclaim for an order that the third plaintiff (Quarry Quip Engineering Pty. Ltd.) (“Quarry Quip”) be wound up.

The fourth, and originally the only, plaintiff, Skye Quarries Pty. Ltd. (“Skye Quarries”), led the way in relation to the plaintiffs' monetary claims. It sought not only from French but also from the third defendant (Ian Dalton Hosking), the fourth defendant (Ballarto), the fifth defendant (Skye Quarries Sales Pty. Ltd.) (“SQ Sales”) and the seventh defendant (Quarry View) a minimum of $8,947,314 plus interest and a maximum of $12,660,014, plus interest. The same plaintiff also submitted that it was entitled to judgment against the second defendant (French's wife, Nancy French) in the sum of $400,000 and against the sixth defendant (Skye Poultry Pty. Ltd.) (“Skye Poultry”) in the sum of $73,120.48. Again, interest was claimed…

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 French v Smith

Details

AGLC: French v Smith [2005] VSCA 114
Case: [2005] VSCA 114
Decision Date: 11 May 2005

CaseChat Overview and Summary

In the case of French v Smith, the plaintiff, French, sought to recover costs associated with both the trial and the subsequent appeal from the defendant, Smith. The dispute was heard and determined by the Supreme Court of Victoria. French argued that the costs should follow the event, meaning Smith should bear the costs, while Smith contended that the costs should lie where they fell, meaning each party should bear their own costs.

The court was required to decide whether the principle of costs following the event applied in this case and, if so, how it should be applied. Additionally, the court needed to determine the appropriate date from which penalty interest on the judgment should be calculated, considering payments made by Smith to French and into a joint account held by their solicitors.

The court held that the principle of costs following the event did not apply, and therefore, costs in each case were to lie where they fell. Regarding the penalty interest, the court found that the principal sum upon which it was to be calculated should be the amount paid by Smith to French, not the total amount of the judgment debt. The court also determined that penalty interest should commence from the date of the original judgment, regardless of the subsequent payments made.

The court ordered that Smith pay French the amount of $X, along with penalty interest calculated from the date of the original judgment. Smith was also ordered to pay his own costs of the appeal.

Orders