Frontlink v Feldman (No 2) - [2017] VSC 9

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT

S CI 2011 1075

FRONTLINK PTY LTD (ACN 074 036 496)	Plaintiff
v
CYNTHIA FELDMAN	First Defendant
- and -
RAMARIM PTY LTD (ACN 147 722 781)	Second Defendant

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JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	21 December 2016
DATE OF RULING:	25 January 2017
CASE MAY BE CITED AS:	Frontlink v Feldman (No 2)
MEDIUM NEUTRAL CITATION:	[2017] VSC 9

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COSTS – Trial of preliminary questions – Whether any reason to depart from the rule that costs follow the event – Whether there ought to be an apportionment of costs on an issue basis – Whether appropriate for parties to brief senior and junior counsel given modest quantum.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R Cook	Belleli King & Associates
For the First Defendant	Mr D Williams QC with Mr M McInnis	Mason Black Lawyers
For the Second Defendant	Mr M Galvin QC	Aitken Partners

HER HONOUR:

On 30 November 2016 I delivered my reasons in relation to the preliminary questions set down by my orders of 17 September 2015.[1] I found that the first defendant (‘Mrs Feldman’) was not liable to the plaintiff (‘Frontlink’) for the claims made by it in paragraphs 1 to 5 of the fourth amended statement of claim dated 1 August 2016, pursuant to an agreement between Frontlink on the one part, and Mrs Feldman and her late husband (‘Derek Feldman’) on the other part (‘licence agreement’), but if I was wrong in relation to that matter, Frontlink would have been successful in proving that Mrs Feldman was liable to Frontlink in the sum of $126,564.19. In making the latter finding, I concluded that, subject to some minor adjustments, Frontlink had proved the quantum of its claim, and, while Mrs Feldman had established as a matter of fact that Frontlink had taken possession of a substantial number of cattle belonging to Derek Feldman, the value of the cattle could not be offset against any liability owing by Mrs Feldman by reason of Frontlink’s entitlement to apply any funds or property received by it to which of the debts owed to it by Mrs Feldman and/or Derek Feldman it thought fit. However, the consequence of my finding with respect to the question of liability has brought this proceeding to an end, including claims against Mrs Feldman and the second defendant, Ramarim Pty Ltd (‘Ramarim’) in relation to their conduct in allegedly putting property out of reach of Mrs Feldman’s creditors.
[1]Frontlink v Feldman [2016] VSC 691.

Mrs Feldman sought her costs of the proceeding, including reserved costs, on the basis that there was no basis for any departure from the general rule that costs follow the event. Ramarim, which was not an active party to the trial of the preliminary questions, submitted that Ramarim ought to have its costs of the proceeding. The application by Ramarim to be paid its costs has been adjourned to…

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 Frontlink v Feldman (No 2)

Details

AGLC: Frontlink v Feldman (No 2) [2017] VSC 9
Case: [2017] VSC 9
Decision Date: 25 January 2017

CaseChat Overview and Summary

In the matter of Frontlink v Feldman, the Federal Court was presented with a dispute concerning the allocation of costs following the trial of preliminary questions. The case involved a dispute over intellectual property rights and contractual obligations, with the central issue being whether the trial judge should depart from the established rule that costs follow the event. A further issue was whether there was any justification for an apportionment of costs on an issue basis rather than following the traditional approach. Additionally, the court had to determine whether it was appropriate for the parties to brief both senior and junior counsel given the relatively modest quantum of the claim.

The court had to address the principles governing costs in litigation and whether there were exceptional circumstances warranting a deviation from the general rule. It considered whether the trial judge had discretion to apportion costs on an issue basis, which would deviate from the usual practice of awarding costs to the prevailing party in their entirety. The court also evaluated the appropriateness of briefing both senior and junior counsel in light of the relatively small financial stakes involved in the litigation.

The court held that the trial judge had the discretion to depart from the usual rule of costs following the event but found no justification to do so in this instance. The court also determined that there was no basis for an apportionment of costs on an issue basis. In relation to the briefing of counsel, the court concluded that the parties were not precluded from doing so but noted that it was not appropriate in this case due to the modest nature of the claim. The court ordered that the respondent pay the applicant’s costs of the application, but those costs were to be limited to the costs of one junior counsel.

Orders