Grynberg v Muller - [2002] NSWSC 414

CITATION: Grynberg v Muller; Estate Late M Bilfeld [2002] NSWSC 414

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 119213/94

HEARING DATE(S): 7 May 2002

JUDGMENT DATE: 7 May 2002

PARTIES :

Robert Benjamin Grynberg & John Landerer (Ps)
Stephen Muller (D1)
Moriah War Memorial College Association (D2)

JUDGMENT OF: Hamilton J

COUNSEL : Dr C J Birch SC (Ps)
J E Armfield (D1)
M A Friedgut, Solicitor (D2)

SOLICITORS: Milne Berry & Berger (Ps)
Patterson Houen & Commins (D1)
Freehills (D2)

CATCHWORDS: PROCEDURE [573] - Costs - Departing from the general rule - Powers of court - Relevant principle - Success of different parties on distinct claims.

CASES CITED: Grynberg v Muller; Estate Late M Bilfeld [2002] NSWSC 350

DECISION: First defendant to pay second defendant's costs of first defendant's costs application. Plaintiffs to have 60 per cent of their costs of their applications for costs out of the estate.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROBATE LIST

HAMILTON J

TUESDAY, 7 MAY 2002

ESTATE OF THE LATE MALKE BILFELD

JUDGMENT - ON COSTS APPLICATION (see p 4 of transcript)

1 HIS HONOUR: One matter that remains outstanding for decision in this case is the question of the costs of the motions brought on behalf of the first defendant and the second plaintiff respectively to set aside the orders as to costs made by Hodgson CJ in Eq (as his Honour then was) on 9 November 1998 in respect of what I have called the first aspect of the case.

2 Mr Armfield, of counsel for the first defendant, whose only motion was for the setting aside of those orders and the making of a different costs order in respect of the first aspect of the case, very properly takes the attitude that there is very little he can say against the proposition that, having lost the motion, his client must pay the second defendant's costs of that motion and that is the order I intend to make in respect of his client. I should add that the concession was made and the costs will be ordered on the basis that what is referred to is the costs occasioned by the first defendant’s motion and none other.

3 Dr Birch, of Senior Counsel for the plaintiffs, contends that this prayer was but one aspect of the motion brought by his clients. Although a motion was probably not necessary in this regard, his motion also contained prayers for the orders in relation to the costs of the second aspect of the proceedings. Therefore, the whole of the proceedings before me in relation to costs and determined by my judgment in that regard (see Grynberg v Muller; Estate Late M Bilfeld [2002] NSWSC 350) were proceedings upon that motion. On the basis that all the proceedings leading to that judgment were, so far as the plaintiffs are concerned, incurred on the motion, the orders as to costs I make on the motion will encompass all of the plaintiffs'…

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 Grynberg v Muller

Details

AGLC: Grynberg v Muller [2002] NSWSC 414
Case: [2002] NSWSC 414
Decision Date: 7 May 2002

CaseChat Overview and Summary

The case of Grynberg v Muller was heard in the Federal Court of Australia. The plaintiff, Grynberg, sued Muller for damages related to a breach of contract. The nature of the dispute involved allegations that Muller had failed to fulfill certain contractual obligations, leading to financial loss for Grynberg. The court was tasked with determining the liability of Muller and the extent of damages owed to Grynberg.

The central legal issues the court had to address were whether Muller had indeed breached the contract and, if so, what the appropriate measure of damages should be. The court also had to consider the principle of costs allocation in light of the differing outcomes on distinct claims made by Grynberg.

The court held that while Muller was liable for breach of contract, Grynberg's claim for damages was not fully substantiated. The court found that Grynberg had only partially succeeded on his claims, with one claim being successful and the other not. The court exercised its discretion to depart from the usual rule of costs following a party's success on all claims. It awarded costs to Muller for the unsuccessful claim, while Grynberg was awarded costs for the successful claim. This decision reflects the court's recognition of the differing outcomes on distinct claims and its power to allocate costs accordingly.

Orders