Geron v Geron (No 2) - [2018] VSC 710

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST

S CI 2018 01291

AVIEL GERON	Plaintiff
v
CHAIM GERON	First Defendant
and
LB GERON ENTERPRISES PTY LTD (ACN 619 424 289)	Second Defendant
and
ELIZABETH RUTH ANDREWS	Third Defendant
and
REGISTRAR OF TITLES	Fourth Defendant

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JUDGE:	MOORE J
WHERE HELD:	Melbourne
DATE OF HEARING:	Decision made ‘on the papers’
DATE OF JUDGMENT:	19 November 2018
CASE MAY BE CITED AS:	Geron v Geron (No 2)
MEDIUM NEUTRAL CITATION:	[2018] VSC 710

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COSTS – Application dismissed against third defendant – Indemnity costs sought by plaintiff and first and second defendant – Calderbank offer – Offers of compromise – Offer to capitulate or genuine offer – Whether applicant had an arguable claim – Whether costs to follow the event – Preserve the status quo – Costs reserved – United Petroleum Australia Pty Ltd v Herbert Smith Freehills (No 2) [2018] VSC 501 – Supreme Court Act 1986 (Vic), s 21 – Supreme Court (General Civil Procedure) Rules 2015 (Vic), rr 63.02, 63.28.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D Triaca	Waterson Legal
For the First and Second Defendants	Mr Chaim Geron, in person	Chaim Geron Lawyers
For the Third Defendant	Mr C F E Dawlings	Taussig Cherrie Fildes Lawyers

HIS HONOUR:

On 3 May 2018, the third defendant filed a summons seeking an order that this proceeding be transferred to the Family Court of Australia pursuant to s 5(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987.

In reasons for judgment delivered on 9 October 2018,[1] I decided that the third defendant’s application to transfer the proceeding should be dismissed. I directed the parties to submit any proposed orders as to costs and, in the absence of agreement, any short submissions on costs.
[1][2018] VSC 582.

Submissions as to costs were received from the plaintiff on 17 October 2018, from the first and second defendants on 17 October 2018 and from the third defendant on 23 October 2018. The parties did not object to the Court determining the question of costs on the basis of written submissions without a further hearing.

The plaintiff seeks the costs of the third defendant’s application on an indemnity basis from 2 July 2018 and otherwise on a standard basis. In the alternative, he seeks the costs of the third defendant’s application on a standard basis. The first and second defendants seek payment of their costs on an indemnity basis.

The third defendant’s primary position is that the costs of her application to transfer the proceeding should be reserved. Alternatively, if the plaintiff and the first and second defendants were to be awarded the costs of the summons, that those costs be assessed on a standard basis.

The Court has full power to determine the extent of costs to be paid.[2] Any costs in the proceeding which are to be taxed may be taxed on a standard basis, an indemnity basis or such other…

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 Geron v Geron (No 2)

Details

AGLC: Geron v Geron (No 2) [2018] VSC 710
Case: [2018] VSC 710
Decision Date: 19 November 2018

CaseChat Overview and Summary

In the matter of Geron v Geron (No 2), the plaintiff sought indemnity costs against the third defendant, along with the first and second defendants, following a failed application to set aside a settlement agreement. The case was heard in the Supreme Court of Victoria. The primary dispute centred around the indemnity costs sought by the plaintiff and the first and second defendants, following a rejected application to overturn a settlement agreement. The plaintiff argued for indemnity costs, contending that the application to set aside the settlement agreement was not frivolous or vexatious, but rather had a reasonable prospect of success.

The legal issues at hand required the court to determine whether the applicant had an arguable claim and whether costs should follow the event. The court needed to assess the nature of the offers made, particularly whether they were genuine offers of compromise or mere offers to capitulate. The court also considered the principle of preserving the status quo in relation to costs and whether indemnity costs should be awarded in light of the rejected application to set aside the settlement agreement.

The court found that the applicant had an arguable claim, but the application to set aside the settlement agreement was not a genuine offer of compromise, but rather an offer to capitulate. The court held that the status quo in relation to costs should be preserved, and thus, indemnity costs were not awarded. The court relied on the principles set out in United Petroleum Australia Pty Ltd v Herbert Smith Freehills (No 2) [2018] VSC 501 and interpreted sections 21 of the Supreme Court Act 1986 (Vic) and rules 63.02 and 63.28 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) to reach its decision.

As a result, the application for indemnity costs was dismissed, and the costs were reserved for further determination in the ongoing proceedings. The court's decision underscored the importance of distinguishing between genuine offers of compromise and offers to capitulate, as well as the principle of preserving the status quo in relation to costs in the context of rejected applications to set aside settlement agreements.

Orders