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Kent v Wilson

Kent v Wilson

Case [2008] VSC 98 27 March 2008

Appeal

Costs

Recovery of Costs

Finance & Banking Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 2003 of 2006

ST GEORGE BANK LIMITED (ACN 055 513 070)	Plaintiff
v
BOMAN IRANI & ORS	Defendants

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JUDGE:	WHELAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 March 2008
DATE OF JUDGMENT:	27 March 2008
CASE MAY BE CITED AS:	St George Bank Limited v Irani & Ors
MEDIUM NEUTRAL CITATION:	[2008] VSC 98

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Banking and Financial Institutions – Banker and Customer - Recovery of legal costs under securities – Account taken by Master- Appeal - Right of appeal to a Judge from Master’s order under order 78 – Master did not err by not precluding recovery of costs of earlier proceeding until costs had been taxed pursuant to order made by judge

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr. R. Garratt QC, and Mr. D. Bailey	Herbert Geer & Rundle
For the Defendants	Mr. C. Pannam QC, and Mr. G. Parncatt	Comlaw

HIS HONOUR:

Litigation between these parties in this Court has been extensive. Most of that litigation has been in proceeding number 6093 of 2003, which I will refer to as the “earlier proceeding”. Doctor Boman Irani and persons associated with him were plaintiffs in that proceeding. Certain issues were decided against the plaintiffs in that proceeding by Byrne J in August 2004[1] and the balance of the issues raised were, in substance, decided against them by me in October 2005.[2]
[1][2004] VSC 403.
[2][2005] VSC 260.

In the earlier proceeding the plaintiff, St George Bank Limited, which I will refer to as “the bank”, was the defendant. It had a counterclaim in which it sought declarations as to its entitlements under various securities. It succeeded on its counterclaim and it obtained certain declarations.

For reasons which I gave on 26 October 2005,[3] I refused a late application by the bank to amend its counterclaim so as to claim a money sum. I made an order for costs in favour of the bank on the ordinary party/party basis. No claim was made in that proceeding for recovery of costs on any other basis relying upon contractual provisions.
[3][2005] VSC 456.

The bank then issued this proceeding to recover the outstanding amount of its debt and also to recover legal costs which it alleged were owed to it under indemnity provisions in the various security documents. Justice Dodds-Streeton gave summary judgment on liability in this proceeding in May 2006.[4] I then heard the quantum issues and on 3 October 2007 I made orders including an order under Order 52 of the Rules for the taking of an account by a Master.[5] On 10 December 2007 Master Daly determined the amount owing. The defendants now appeal the order she made in relation to that determination.
[4][2006] VSC 217.
[5][2007] VSC 382.

The appeal came on before me in the Practice Court on 18 March 2008. Two issues were raised on 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.

Continue reading Kent v Wilson

Details

AGLC: Kent v Wilson [2008] VSC 98
Case: [2008] VSC 98
Decision Date: 27 March 2008

CaseChat Overview and Summary

In the case of Kent v Wilson, the plaintiff sought recovery of legal costs incurred in a previous proceeding. The matter was heard before a Master and subsequently appealed to the court. The dispute centred on whether the bank, as the defendant, was liable to reimburse the plaintiff for these legal costs, which were associated with securities held in the bank's custody. The plaintiff argued that the costs should be recovered under the terms of the banking relationship and the securities held by the bank.

The legal issues before the court included whether the Master had the authority to preclude the recovery of costs until they had been taxed by a judge, and whether the Master's order was in accordance with the relevant rules and precedent. The court had to determine whether the Master's decision to allow the recovery of costs was correct, and if there was any error in not waiting for the costs to be taxed before making the order.

The court found that the Master did not err in not precluding the recovery of costs until they had been taxed by a judge. The court held that the Master had the discretion to make an order for the recovery of costs, and that there was no requirement to wait for the costs to be taxed before doing so. The court also noted that the plaintiff had a right to appeal the Master's order to a judge, and that the appeal process was properly followed in this case. The court concluded that the Master's order was not erroneous, and that the defendant was liable to pay the plaintiff's legal costs as ordered.

The court made an order that the defendant pay the plaintiff's costs of the appeal, and that the plaintiff recover the legal costs from the defendant as ordered by the Master. The court also noted that the defendant had the right to apply to a judge for an order taxing the costs, but that this did not affect the validity of the Master's order. Overall, the court upheld the Master's decision and confirmed the plaintiff's right to recover the legal costs from the defendant.

Orders