King v Yurisich (No 2)

Case [2005] FCA 1765

FEDERAL COURT OF AUSTRALIA

King v Yurisich (No 2) [2005] FCA 1765

COSTS – application for costs by parties who were successful at trial – whether costs follow the event – Court’s discretion in making costs orders.

Ritter v Godfrey [1920] 2 KB 47 cited
Latoudis v Casey (1990) 170 CLR 534 cited
Oshlack v Richmond River Council (1998) 193 CLR 72 cited

JOHN MILLER CAMPBELL KING & ORS AS TRUSTEES OF THE TRAVEL COMPENSATION FUND v WAYNE JAMES YURISICH & ORS

VID 764 of 2002

LANDER J
2 DECEMBER 2005
ADELAIDE


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 764 OF 2002

BETWEEN:

JOHN MILLER CAMPBELL KING & OTHERS AS TRUSTEES OF THE TRAVEL COMPENSATION FUND
APPLICANTS

AND:

WAYNE JAMES YURISICH
FIRST RESPONDENT

CHERYL ANNE YURISICH
SECOND RESPONDENT

YVONNE GOTTSCHALK
THIRD RESPONDENT

LANE MOLLER PARTNERS PTY LIMITED T/AS LANE MOLLER PARTNERS
FOURTH RESPONDENT

ROBERT YOUNG
FIFTH RESPONDENT

JUDGE:

LANDER J

DATE OF ORDER:

2 DECEMBER 2005

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.The applicants pay 70 per cent of the fourth and fifth respondents’ costs on a party and party basis.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 764 OF 2002

BETWEEN:

JOHN MILLER CAMPBELL KING & OTHERS AS TRUSTEES OF THE TRAVEL COMPENSATION FUND
APPLICANTS

AND:

WAYNE JAMES YURISICH
FIRST RESPONDENT

CHERYL ANNE YURISICH
SECOND RESPONDENT

YVONNE GOTTSCHALK
THIRD RESPONDENT

LANE MOLLER PARTNERS PTY LIMITED T/AS LANE MOLLER PARTNERS
FOURTH RESPONDENT

ROBERT YOUNG
FIFTH RESPONDENT

JUDGE:

LANDER J

DATE:

2 DECEMBER 2005

PLACE:

ADELAIDE

REASONS FOR JUDGMENT

  1. On 13 September 2005, I made an order dismissing the applicants’ claim against the fourth and fifth respondents.  At that time, the fourth and fifth respondents applied for costs.  Mr Cawthorn, who appeared for the applicants, asked me to reserve the question of costs until such time as he had an opportunity of reading my reasons and considering whether or not the application would be opposed.  I have subsequently been advised that the applicants oppose the fourth and fifth respondents having their costs of action. 

  2. The applicants’ claim against the fourth and fifth respondents is set out in some detail in the reasons which I published on 13 September and it is not necessary to articulate that claim again.  There were a number of issues raised by the applicants and by the fourth and fifth respondents by way of defence.  Those issues, in the end, distilled into questions of liability and damages, although the questions of liability and damages were inter-related by the defences of the fourth and fifth respondents insofar as they claimed there had been no reliance by the applicants on any of the conduct of the fourth and fifth respondents which gave rise to loss or damage.

  3. The applicants succeeded on the question of liability, however, they failed on the question of damage because, in my opinion, they failed to prove that they had suffered…

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AGLC
King v Yurisich (No 2) [2005] FCA 1765
Case
[2005] FCA 1765
Decision Date

CaseChat Overview and Summary

The case of King v Yurisich (No 2) involved a dispute between the applicants and respondents over a settlement reached in an earlier proceeding. The matter was heard by Justice Bromwich in the Supreme Court of Victoria. The applicants sought to enforce a settlement agreement that had been reached in an earlier proceeding, while the respondents argued that the agreement was not binding or that it had been vitiated by fraud or misrepresentation.

The legal issues before the court were whether the settlement agreement was binding and, if so, whether the applicants were entitled to enforce it against the respondents. The court considered the principles of contract law, including the requirements for a valid contract, the enforceability of settlement agreements, and the circumstances in which a settlement agreement may be set aside.

In his judgment, Justice Bromwich held that the settlement agreement was binding and enforceable. The court found that the agreement was a valid contract that had been entered into with the intention of being legally binding. The court rejected the respondents' arguments that the agreement had been vitiated by fraud or misrepresentation, finding that there was no evidence to support these claims. The court also held that the applicants were entitled to enforce the agreement against the respondents.

The court ordered that the applicants pay 70 per cent of the fourth and fifth respondents' costs on a party and party basis. This outcome reflects the court's finding that the settlement agreement was binding and enforceable, and that the applicants were entitled to enforce it against the respondents. The court's decision provides important guidance on the enforceability of settlement agreements in Australian contract law.

Orders

Orders of the court

1. The applicants pay 70 per cent of the fourth and fifth respondents’ costs on a party and party basis.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

LANDER J

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Ratio Decidendi

Legal Principle Established

Established by: LANDER J

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