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Klein v Mochkin [No 2]

Klein v Mochkin [No 2]

Case [2024] VSCA 223 2 October 2024

Appeal

Stay of Proceedings

Costs

Civil Litigation & Procedure

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2022 0115

YECHIEL KLEIN & ORS (ACCORDING TO THE ATTACHED SCHEDULE)	Appellants
v
YOSEF MOCHKIN & ANOR (ACCORDING TO THE ATTACHED SCHEDULE)	Respondents

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JUDGES:	KENNEDY, WALKER and MACAULAY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	5 September 2024
DATE OF JUDGMENT:	2 October 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 223
JUDGMENT APPEALED FROM:	[2022] VCC 1385 (Judge Burchell); [2022] VCC 1835 (Judge Burchell)

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PRACTICE AND PROCEDURE – Orders – Where trial judge had made referral to special referee – Changes required to directions to special referee following successful appeal.

PRACTICE AND PROCEDURE – Costs – Where appellants had only partial success on appeal – Whether respondents should pay all of appellants’ costs – Respondents ordered to pay 80 per cent of appellants’ costs.

PRACTICE AND PROCEDURE – Stay – Whether appropriate to order stay of execution of judgment pending application for special leave to appeal to High Court – Principles applicable to stay – No order for stay.

Nom de Plume Nominees Pty Ltd v Fingal Developments Pty Ltd [No 2] [2016] VSCA 233, applied; Mann v Paterson Constructions Pty Ltd [2018] VSCA 313, discussed.

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Counsel
Appellants:		Mr AL Ounapuu
Respondents:		Mr MI Ravech
Solicitors
Appellants:	Rosendorff Lawyers
Respondents:	Rotman & Morris

KENNEDY JA
WALKER JA
MACAULAY JA:

In this matter, the Court allowed an appeal from a decision of a judge of the County Court.[1] The Court sought and received written submissions from the parties about the appropriate orders that ought to be made as a consequence. The Court also heard oral argument on some of the matters raised in the written submissions.[2] The parties were, in large measure, in agreement about the form of orders, but differed in relation to two matters:
(a)whether certain consequential amendments ought to be made to the trial judge’s orders; and
(b)the extent to which the appellants ought to recover their costs of the appeal.
[1]Klein v Mochkin [2024] VSCA 174 (‘Principal Reasons’).
[2]Justice Kennedy was not present at the hearing of further oral argument but, with the consent of the parties, read the written submissions and the transcript of the hearing of further oral argument.
In addition, the second respondent, JMEC Retail Pty Ltd (‘JMEC’), submitted that it ought not be liable for any of the appellants’ costs, and both respondents sought a stay of any orders, pending an application for special leave to appeal to the High Court.
These reasons deal with the above matters and are to be read with our Principal Reasons.

Background

The first respondent, Yosef Mochkin, and two of the appellants, Yechiel Klein and Menashe Segman, had formerly operated an online retailing business together through a partnership. At trial Mochkin and JMEC (the respondents to the appeal) succeeded in establishing that Klein and Segman had breached their fiduciary duties by use of partnership property in the running of a new business and that the third appellant, Getafix Café Pty Ltd (‘Getafix’), was…

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 Klein v Mochkin [No 2]

Details

AGLC: Klein v Mochkin [No 2] [2024] VSCA 223
Case: [2024] VSCA 223
Decision Date: 2 October 2024

CaseChat Overview and Summary

In the matter of Klein v Mochkin [No 2], the dispute was concerned with the procedural aspects of the case, particularly regarding the referral to a special referee and the costs associated with the appeal process. The case was heard in the Supreme Court of Victoria, Appeal Division. The respondents were ordered to pay 80 per cent of the appellants' costs, and there was a consideration of whether to stay the execution of the judgment pending an application for special leave to appeal to the High Court.

The primary legal issues that the court had to address were the changes required to the directions to the special referee following a successful appeal, the appropriate allocation of costs between the parties given the partial success of the appeal, and the principles governing the grant of a stay of execution pending an application for special leave to appeal. The court had to determine whether the respondents should bear all of the appellants' costs and whether it was appropriate to order a stay of execution pending the application for special leave to appeal.

In addressing these issues, the court considered relevant precedents, including Nom de Plume Nominees Pty Ltd v Fingal Developments Pty Ltd [No 2] and Mann v Paterson Constructions Pty Ltd. The court held that the respondents should pay 80 per cent of the appellants' costs due to their partial success on appeal. The court also examined the principles applicable to the grant of a stay of execution, ultimately deciding against ordering a stay, as it was not deemed appropriate in the circumstances. The reasoning focused on the balance of convenience and the risk of injustice if a stay were granted.

The final orders of the court were that the respondents were to pay 80 per cent of the appellants' costs and that there would be no stay of execution of the judgment pending the application for special leave to appeal. This decision was based on the detailed analysis of the procedural issues and the application of relevant legal principles.

Orders