Knudsen v Kara Kar (No.2) - [2000] NSWSC 943

Reported Decision: 52 NSWLR 254

New South Wales

Supreme Court

CITATION: Knudsen v Kara Kar (No.2) [2000] NSWSC 943

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 1150/91

HEARING DATE(S): 8 September 2000

JUDGMENT DATE: 9 October 2000

PARTIES :

Niels Knudsen & Suchindra Knudsen (P)
Kara Kar Holdings Pty Ltd (D1)
William Yardy (D2)
Jennifer Yardy (D3)

JUDGMENT OF: Austin J

COUNSEL : P Dodson (P)
J De Meyrick (D)

SOLICITORS: Koffels (P)
Harpers (D1)
Lincoln Smith & Company (D2-D3)

CATCHWORDS: COSTS - costs of re-hearing where plaintiffs succeeded at first hearing, defendants succeeded on appeal and plaintiffs succeeded at re-hearing - meaning of 'costs of the re-hearing' - whether costs order at first hearing was extinguished when Court of Appeal ordered that the matter be remitted for re-hearing - basis for plaintiffs' recovery of interest

LEGISLATION CITED: Supreme Court Act 1970 (NSW) s 94

CASES CITED: Amalgamated Television Services v Marsden [1999] NSWCA 313
Hagan v Waterhouse (1991) 34 NSWLR 308
J T Stratford & Son Ltd v Lindley (No 2) [1969] 3 All ER 1122
John Pfeiffer Pty Ltd v Rogerson (2000) 74 ALJR 1109
Monaco v Arnedo Pty Ltd (1994) 13 WAR 522
Stewart v McKinley (1885) 11 VLR 802
Tamworth Base Hospital v Durant [2000) NSWCA 209
Wojcic v Incorporated Nominal Defendant (No 2) [1968] VR 533

DECISION: Orders for determination of separate questions, answering of separate questions, and judgments for plaintiffs; defendants to pay interest; defendants to pay plaintiffs' costs of first hearing, appeal and re-hearing, subject to certain allowances.

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

AUSTIN J

MONDAY 9 OCTOBER 2000

1150/91 . NIELS KNUDSEN & ANOR V KARA KAR HOLDINGS PTY LTD & 2 ORS (NO.2)

JUDGMENT

1 HIS HONOUR: On 21 July 2000 I handed down reasons for judgment in which I gave my answers to a number of questions that had been formulated by the parties for separate determination. All that remains me to do is to make orders giving effect to my reasons for judgment, and to deal with the questions of interest and costs. However, when these matters were argued before me on 8 September, questions were raised about the form of the orders, and whether interest should be ordered and if so, whether the order should be qualified. It also became evident that the question of costs was not straightforward in several respects.

Background

2 As I said in my reasons for judgment, the proceedings have a tangled history. The first substantial hearing was before Young J, who delivered his reasons for judgment on 13 April 1994. He found for the plaintiffs, holding that the first defendant had committed breaches of trust, and he directed an inquiry before the Master. Master Macready dealt with various aspects of the inquiry in reasons for judgment delivered on 1 February and 22 March 1996. The matter then returned to Young J. In his further reasons for judgment delivered on 4 September 1996, Young J found that the plaintiffs…

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 Knudsen v Kara Kar (No.2)

Details

AGLC: Knudsen v Kara Kar (No.2) [2000] NSWSC 943
Case: [2000] NSWSC 943
Decision Date: 9 October 2000

CaseChat Overview and Summary

In the matter of Knudsen v Kara Kar (No.2), the parties involved were Knudsen, the plaintiff, and Kara Kar, the defendant. The dispute centred around the costs incurred during the course of legal proceedings, specifically following a successful first hearing, a subsequent appeal by the defendant, and a re-hearing where the plaintiff again emerged victorious. The case was heard in the Supreme Court of Victoria.

The court was tasked with determining the appropriate costs to be awarded to the plaintiff, focusing on the meaning of 'costs of the re-hearing'. The central issue was whether the costs order made at the first hearing was nullified when the Court of Appeal ordered the matter to be remitted for a re-hearing. Additionally, the court needed to ascertain the basis for the plaintiff's recovery of interest on the costs awarded.

The court reasoned that the costs order made at the first hearing did not cease to exist merely because the matter was remitted for re-hearing. Rather, the re-hearing constituted a new proceeding, with its own distinct costs that the parties were obligated to bear. The court held that the plaintiff was entitled to recover interest on the costs awarded at the first hearing, as the defendant's appeal did not nullify the initial costs order. The court found that the plaintiff was entitled to the interest from the date the first costs order was made until the date of the re-hearing judgment.

In summary, the court held that the costs order from the initial hearing remained in effect and that the plaintiff was entitled to interest on those costs from the date of the initial order until the date of the re-hearing judgment. The court's decision clarified the meaning of 'costs of the re-hearing' and provided guidance on the recovery of interest in such cases.

Orders