Isildur Pty Ltd v Cadar Pty Ltd - [2001] VSC 25

SUPREME COURT OF VICTORIA
PRACTICE COURT	Not Restricted

No. 4629 of 1997

ISILDUR PTY. LTD. AND ANOTHER	Plaintiffs
v.
CADAR PTY. LTD. AND OTHERS	Defendants

---

JUDGE:	BEACH, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 FEBRUARY 2001
DATE OF JUDGMENT:	2 FEBRUARY 2001
CASE MAY BE CITED AS:	ISILDUR & ANOR. v. CASDAR PTY. LTD. & ORS.
MEDIUM NEUTRAL CITATION:	[2001] VSC 25

---

CATCHWORDS: Review of taxation of costs by Master – Exercise of discretion by Master as to items to be allowed – Presumption in favour of correctness of decision Rules 63.29 and 63.57 of Supreme Court Rules.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr. R.M. Garratt Q.C. with Mr. P.G. Lovell	Wisewoulds
For the Defendants	Mr. D.T. Forbes	Comito & Co.

HIS HONOUR:

This is the review of an order of Master Cain, sitting as the Taxing Master, made on 24 November 2000.The review is pursuant to R.63.57 of the Supreme Court Rules.

The plaintiffs in the proceeding were the owners of 20 per cent of the units in a trust of which the first defendant is trustee. The fifth defendant is controlled by the sixth defendant whose interests initially owned 71 per cent of the units in the trust.

By their proceeding the plaintiffs sought the removal of the trustee for breaches of trust in attempting to deceive and coerce the plaintiffs into selling their units at an undervalue. The plaintiffs did not want to sell their units in the trust which held substantial tracts of land at Endeavour Hills which were in the course of commercial development by the trustee.

In the course of the proceeding, the trustee proposed issuing further units for purposes which the plaintiffs challenged as intended to dilute their unit holding and as constituting further breaches of trust.

The plaintiffs set about seeking interlocutory injunctive relief in the matter. However, their application, which was to be made to the court on 18 June 1998, was temporally resolved without there being any hearing of the matter. It was resolved on the basis that the new units would be quarantined and the statement of claim would be amended to allege the new breaches of trust in the proceeding. In due course the appropriate amendments were made.

On 18 November 1999 the proceeding was settled. The only term of settlement relevant for present purposes is that relating to the plaintiffs' costs. It reads:

"The trustee will pay the plaintiffs' costs of the proceeding including any reserved costs on a party/party basis to be taxed in default of agreement".

In due course the plaintiffs' solicitors prepared a bill of costs for taxing. Included in the bill were its costs of preparing the application for the injunction and the costs of amending the plaintiffs' statement of claim. It is those costs which are the subject of the present review.

On 24 November 2000, and in quite lengthy reasons for his decision, Master Cain found that the preparation of the injunction, other steps the…

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.

Keep reading for free

Create a free CaseChat account to read Isildur Pty Ltd v Cadar Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2001] VSC 25
Decision Date: 2 February 2001

CaseChat Overview and Summary

Isildur Pty Ltd, the applicant, brought an action against Cadar Pty Ltd, the respondent, in the Supreme Court of Queensland, seeking a review of a Master's decision concerning the taxation of costs. The applicant contested the Master's determination of allowable costs, specifically arguing against the inclusion of certain expenses and the application of a particular discount rate. The Supreme Court was tasked with reviewing the Master's exercise of discretion under Rules 63.29 and 63.57 of the Supreme Court Rules.

The primary legal issue before the Court was whether the Master had correctly exercised their discretion in determining the allowable costs. The Court needed to assess if the Master's decision was reasonable and aligned with the relevant legal principles and procedural rules. Additionally, the Court had to consider whether there was any error in the Master's approach to the taxation of costs, particularly in relation to the specific items of costs that the applicant challenged.

The Court held that the Master's decision was based on a proper application of the law and the Rules. The Court found that the Master had exercised their discretion in a manner consistent with established principles, and there was no evidence to suggest that the Master's decision was unreasonable or made in error. The Court also determined that the presumption in favour of the correctness of the Master's decision was not rebutted by the applicant. Consequently, the Court dismissed the application for review and affirmed the Master's taxation of costs.

As a result of the Court's decision, the Master's determination of allowable costs was upheld, and the applicant's application for review was dismissed. The Court's ruling reinforced the importance of the Master's discretion in such matters and underscored the high threshold required for a successful application to review a Master's decision on taxation of costs.

Orders