JUDGE:	Irving AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	30 September 2021
DATE OF JUDGMENT:	19 October 2021
CASE MAY BE CITED AS:	Kritsidimas v Dimitrakakis (No 2)
MEDIUM NEUTRAL CITATION:	[2021] VSC 677	(First Revision: 19 October 2021)

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PRACTICE AND PROCEDURE – Leave to discontinue and cost consequences – Where defendant seeks costs on indemnity basis or from plaintiff personally – Where defendant says plaintiff knowingly made false accusations, claim was misconceived and constituted a campaign of harassment – Special circumstances not found - Supreme Court (General Civil Procedure) Rules2015 (Vic) rr 25. 05, 63. 15 – Cohen v The State of Victoria & Ors (No 3) [2011] VSC 229.

PRACTICE AND PROCEDURE – Release from implied undertaking not to use documents – ‘Harman undertaking’ – Where intended use of documents not established – Special circumstances not found – Civil Procedure Act2010 (Vic) ss 27(1), 27(3)(b) – Ubertas Funds Management Pty Ltd v PwC (release from implied undertaking) [2017] VSC 735 - Harman v Secretary of State for the Home Department [1983] 1 AC 280 – Hearne v Street (2008) 235 CLR 125.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms C F Gobbo of counsel	Douros Jackson Lawyers
For the Defendant	Mr J D Catlin of counsel	Marshalls & Dent & Wilmoth Lawyers

HIS HONOUR:

The plaintiff and the defendant are brother and sister. On 10 June 2016, the plaintiff commenced a proceeding against the defendant in which she alleged that the defendant misappropriated money belonging to their deceased father. After five years, following several attempts at pleading her case, several interlocutory hearings and three unsuccessful mediations, the plaintiff seeks to discontinue the proceeding.

There are presently two applications before the Court, the first issued by the plaintiff is to discontinue the proceeding, and the second, issued by the defendant, seeks release from obligations, arising under the Civil Procedure Act 2010 (Vic) (‘CPA’), limiting the use of documents he has obtained in the proceedings.

By operation of the rules of the Court, a party who discontinues a proceeding must pay the costs of the other party up until the date of the discontinuance. The defendant says that the proceeding should never have been brought and that the plaintiff is abandoning her case in order to avoid certain defeat; he seeks an order that the plaintiff pay his costs on an indemnity basis. This is resisted by the plaintiff, who says an order for costs on a standard basis is appropriate.

With respect to the second application, the defendant seeks an order that he be released from his obligation arising under s 27(1) of the CPA not to use the documents produced in this proceeding for a purpose other than…

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 Kritsidimas v Dimitrakakis (No 2)

Details

AGLC: Kritsidimas v Dimitrakakis (No 2) [2021] VSC 677
Case: [2021] VSC 677
Decision Date: 19 October 2021

CaseChat Overview and Summary

The dispute in Kritsidimas v Dimitrakakis (No 2) involved the plaintiff, Kritsidimas, and the defendant, Dimitrakakis. The matter was heard in the Supreme Court of Victoria and centred around the defendant's application for leave to discontinue the proceedings and for an order regarding costs. The defendant argued that the plaintiff had knowingly made false accusations, that the claim was misconceived and constituted a campaign of harassment, and thus the defendant was entitled to costs on an indemnity basis or personally from the plaintiff.

The legal issues before the court included whether the special circumstances required for such an order under the Supreme Court (General Civil Procedure) Rules 2015 (Vic) existed and whether the defendant had established an intended use of documents for the purposes of seeking release from an implied undertaking. The court considered these issues in light of Cohen v The State of Victoria & Ors (No 3) [2011] VSC 229 and relevant statutory provisions.

The court found that the defendant had not demonstrated the presence of special circumstances necessary to justify an order for costs on an indemnity basis or personally from the plaintiff. It concluded that the allegations of knowingly false accusations and harassment were not substantiated and that the defendant had not established an intended use of the documents for the purposes of the action, as required under the Civil Procedure Act 2010 (Vic). Consequently, the application for leave to discontinue and for costs was dismissed. The court's reasoning aligned with the principles established in Cohen and the relevant authorities on implied undertakings.

The final orders of the court included the dismissal of the defendant's application for leave to discontinue the proceedings and for an order regarding costs. The court did not find special circumstances warranting the relief sought by the defendant.

Orders