Grant v Grant (No 2) - [2013] VSC 393

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IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

S CI 2009 09850

ROBERT GRANT	Plaintiff
v
DAVID GRANT	First Defendant
- and -
IRENE GRANT	Second Defendant

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JUDGE:	DALY AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	19 July 2013
DATE OF JUDGMENT:	2 August 2013
CASE MAY BE CITED AS:	Grant v Grant (No 2)
MEDIUM NEUTRAL CITATION:	[2013] VSC 393

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JUDGMENT
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COSTS – Where apportionment of costs appropriate – Parties successful on different issues – Relevance of overarching purpose under the Civil Procedure Act to the Court’s exercise of discretion with respect to costs.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr G McCormick	O’Neill Behan & Associates
For the Defendant	Mr R Young	Waters Lawyers

HER HONOUR:

On 28 June 2013 I published my findings and reasons in relation to the claims and counterclaims made by the plaintiff and the defendants in this proceeding (“reasons”)[1] and invited the parties to make submissions with respect to the form of orders required to give effect to the reasons, and the question of costs. As is explained in the reasons, the parties, being Robert Grant on the one hand, and his parents, David and Irene Grant on the other hand, had mixed success in the proceeding. Robert was unsuccessful in establishing an entitlement to part or all of the proceeds of sale of David and Irene’s home (“property”) by reason of either an agreement between the parties or the imposition of a constructive trust. However, he was successful in obtaining a declaration that he was validly appointed a director of Seventh Advocate Management Pty Ltd (“company”), that David’s share in the company was validly transferred to him, and that Irene’s share in the company was held on trust for him. Robert was also successful in obtaining declarations that certain furniture and other chattels were purchased either using his funds or company funds. However, David was successful in his counterclaim, seeking the return of various vintage and limited edition guitars converted by Robert. Prior to the resumed hearing on 19 July 2013, counsel for the plaintiff helpfully drafted and circulated a draft form of order for consideration. Only three issues remain in dispute: first, the question of costs, secondly, whether all of the furniture and other chattels referred to in the schedule prepared by the parties properly belong to Robert or the company, and thirdly, whether I should make any declaration regarding the freedom of David and Irene to make their wills in the way they see fit.
[1]see Grant v Grant [2013] VSC 329.

Costs

Counsel for Robert submitted that, in effect, costs should follow the event, in that Robert should have the costs of the proceeding, save for the counterclaim, where David should have his costs. Counsel for David and Irene submitted that there be no order as to costs, that is, each party should bear their own costs of the entire proceeding.

Counsel 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 Grant v Grant (No 2)

Details

AGLC: Grant v Grant (No 2) [2013] VSC 393
Case: [2013] VSC 393
Decision Date: 2 August 2013

CaseChat Overview and Summary

The parties involved in Grant v Grant (No 2) were Grant and Grant, and the dispute centred on the apportionment of costs in a case where each party was successful on different issues. The case was heard in the Family Court of Australia. The legal issues before the court were whether it was appropriate to apportion costs between the parties and how the overarching purpose under the Civil Procedure Act should influence the court's discretion in this matter. The overarching purpose, as outlined in the Civil Procedure Act, is to ensure that the parties to proceedings are not unnecessarily burdened with costs, while also ensuring that the court's process is just and expeditious.

The court considered that while both parties had achieved partial success, the overarching purpose of the Civil Procedure Act necessitated a careful assessment of costs. The court found that the overarching purpose required it to consider the proportionality of the costs incurred in relation to the relief obtained. It was held that since each party had been successful on different issues, apportionment of costs was appropriate. The court also emphasised that the overarching purpose should guide the exercise of discretion with respect to costs, ensuring that the costs awarded do not excessively burden either party.

In conclusion, the court determined that the overarching purpose under the Civil Procedure Act played a crucial role in its exercise of discretion regarding costs. It held that in cases where parties achieve partial success on different issues, apportionment of costs was appropriate and necessary. This approach ensured that the costs awarded were proportionate to the relief obtained by each party. The court's decision was in line with the overarching purpose of the Civil Procedure Act, which aims to avoid unnecessary costs while maintaining the fairness and efficiency of the court process. The final orders of the court were that the costs incurred by both parties would be apportioned in a manner that reflected their respective successes on the issues before the court.

Orders