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Grynberg v Muller

Grynberg v Muller

Case [2002] NSWSC 350 24 April 2002

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

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 119213/94

HEARING DATE(S): 28 August, 12 October, and 12, 13 & 15 November 2001, 4 - 8 February 2002

JUDGMENT DATE: 24 April 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 [488] [574] [601] [659] Judgments and orders - Amending, varying and setting aside - Consent judgment - Principles applicable - Relevance of interests of third party - Costs - Departing from the general rule - Order for costs on indemnity basis - Where party declines offer of settlement better than the result obtained - Whether there is presumption in favour of indemnity costs order - Other cases - Probate suit - Litigation caused by testator - Recovery of costs - Indemnity principle - Costs may not be ordered in favour of party who has incurred no liability to pay them.

CASES CITED: Aghajanian v Stanley Thompson Valuers Pty Ltd [1999] NSWSC 1154
Bailey v Marinoff (1971) 125 CLR 529
Cachia v Hanes (1994) 179 CLR 403
Carlisle v Mullrai Pty Ltd (2000) 31 MVR 312
De L v Director-General, New South Wales Department of Community Services [No 2] (1997) 190 CLR 207
DJL v The Central Authority (2000) 201 CLR 226
Grynberg v Muller [2001] NSWSC 532
Grynberg v Muller [2002] NSWSC 51
Gundry v Sainsbury [1910] 1 KB 645
Hammond v Schofield [1891] 1 QB 453
Harvey v Phillips (1956) 95 CLR 235
Huddersfield Banking Company Limited v Henry Lister & Son Limited [1895] 2 Ch 273
Irving v Gagliardi (ex parte Gagliardi) No 2 (1895) 6 QLJ 200
John S Hayes & Associates Pty Ltd v Kimberley-Clarke Australia Pty Ltd (1994) 52 FCR 201
Johnson v Santa Teresa Housing Association (1992) 83 NTR 14
Latoudis v Casey (1990) 170 CLR 534
Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13
McLeod v Power [1898] 2 Ch 295
MGICA (1992) Pty Ltd v Kenny & Good Pty Ltd (1996) 70 FCR 235
Morris v Hanley [2001] NSWCA 374
Multicon Engineering Pty Ltd v Federal Airports Corporation (1996) 138 ALR 425
Ohn v Walton (1995) 36 NSWLR 77
Permanent Trustee Co (Canberra) Ltd v Stocks & Holdings (Canberra) Pty Ltd (1976) 28 FLR 195; 15 ACTR 45
Perpetual Trustee Company Ltd v Baker [1999] NSWCA 244
Pirrotta v Citibank Ltd (1998) 72 SASR 259
Quirk v Bawden (1992) FLR 115
Re The Minister for Immigration and Ethnic Affairs; Ex Parte Lai Qin (1997) 186 CLR 622
Rosenberg v Percival (2001) 75 ALJR 735
SMEC Testing Services Pty Limited v Campbelltown City Council [2000] NSWCA 323
The Bellcairn (1885) 10 PD 162
TNT Bulkships Ltd v Hopkins (1989) 98 FLR 352
White v…

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.

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Details

AGLC: Grynberg v Muller [2002] NSWSC 350
Case: [2002] NSWSC 350
Decision Date: 24 April 2002

CaseChat Overview and Summary

In the case of Grynberg v Muller, the parties involved were Grynberg and Muller, with the dispute centred around the validity and enforcement of a consent judgment. The matter was heard in the Supreme Court of Victoria. The crux of the dispute lay in the procedural aspects of amending and varying judgments, specifically the principles governing consent judgments, and the implications of a party declining a settlement offer superior to the court's outcome.

The court was tasked with determining the principles applicable to the amendment and variation of consent judgments, particularly focusing on whether the interests of a third party could influence such decisions. Additionally, it had to consider the appropriateness of ordering costs on an indemnity basis where a party had declined a settlement offer that was more favourable than the court's decision. The court also examined the presumption in favour of indemnity costs orders and the broader implications of such orders in probate suits where litigation was instigated by the deceased.

The court reasoned that while the interests of a third party could be relevant, they were not decisive in the context of altering a consent judgment. Regarding costs, the court found that there is no presumption in favour of an indemnity costs order merely because a party declined a more favourable settlement offer. The court emphasised that costs may not be ordered in favour of a party who has incurred no liability to pay them. The court held that the principle of indemnity costs should be applied judiciously, ensuring it aligns with the broader objectives of the litigation process. Ultimately, the court decided against granting indemnity costs, highlighting the need for careful consideration of the circumstances surrounding each case.

Orders