Kuek v Devflan Pty Ltd & Anor (No. 2) - [2011] VSCA 85

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2009 3746
GABRIEL KUEK	Appellant
v
DEVFLAN PTY LTD & ANOR (No 2)	Respondents

---

JUDGES:	NEAVE, HARPER and HANSEN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	1 April 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 85

---

COSTS – Successful appellant sought repayment of money paid to respondents under costs orders of Taxing Master on basis that costs orders had been set aside – Respondents’ costs initially taxed at $39,105.20 by Taxing Master on 10 October 2007 – Taxing Master varied costs to $38,730.20 on review on 8 February 2008 – Confirmed on review by judge – On appeal orders of judge and Taxing Master on 8 February set aside, and review remitted to Costs Judge – Order of 10 October 2007 subsisted – Effect of r 63.56.1 – Application refused.

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr A W Sandbach	Access Law
For the Respondents	Mr I G Waller SC	Brygel Lawyers

NEAVE JA:

I have had the advantage of reading the judgment of Hansen JA in draft form and agree, for the reasons he gives, that the application for repayment should be refused with no order as to costs.

HARPER JA:

I also agree with Hansen JA.

HANSEN JA:

On 10 February 2011, following the handing down of judgment, the Court made orders including that the orders of the Taxing Master made on 8 February 2008 and 29 October 2008 be set aside and that the review of the Taxing Master’s orders commenced by notice dated 24 October 2007 be remitted to the Costs Judge for hearing and determination in accordance with law. Counsel for the appellant having requested, and the respondents opposing, repayment of the amounts the appellant has paid for the respondents’ taxed costs, we reserved liberty to apply on issues relating to the amount to be repaid including interest. Subsequently the parties, being unable to agree, requested the Court determine the matter. On 10 February the parties had been informed that if necessary the Court would deal with the matter on the basis of written submissions and without further appearance. Having now received written submissions we deal with the issues raised as follows.

To recapitulate, on 10 October 2007 the Taxing Master taxed and allowed the respondents’ costs in the sum of $39,105.20. He also ordered that the appellant pay the respondents $29,105.20, having previously (on 17 August 2007) made an interim order for the payment of $10,000. Pursuant to those orders the appellant paid the respondent $10,000 on 20 August 2007 and $18,000 on 11 October 2007, and $11,105.20 on 7 December 2007, being the total taxed amount of $39,105.20.

In the meantime, on 24 October 2007 the appellant filed the application to review the order of the Taxing Master pursuant to r 63.56.1. Rule 63.56.1(5) provided that upon the application the Taxing Master –

(a)shall reconsider and review the taxation upon the objections stated in the notice;…

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 Kuek v Devflan Pty Ltd & Anor (No. 2)

Details

AGLC: Kuek v Devflan Pty Ltd (No. 2) [2011] VSCA 85
Case: [2011] VSCA 85
Decision Date: 1 April 2011

CaseChat Overview and Summary

Kuek, as the appellant, sought to recover money paid to Devflan Pty Ltd and another respondent under costs orders issued by the Taxing Master. These costs orders were set aside, and the matter was brought before the court for determination. The court had to decide whether Kuek was entitled to the repayment of the money he had paid to the respondents following the setting aside of the costs orders.

The legal issue before the court was whether the successful appellant could recover the money paid to the respondents under the costs orders of the Taxing Master, particularly after those orders had been set aside. The court considered the effect of rule 63.56.1 of the relevant procedural rules on the matter. The Taxing Master had initially taxed the costs at $39,105.20 on 10 October 2007, and subsequently varied the costs to $38,730.20 on 8 February 2008. The judge confirmed the varied costs on review. On appeal, the orders of the judge and the Taxing Master made on 8 February were set aside, and the review was remitted to the Costs Judge. The order of 10 October 2007 continued to subsist.

The court found that Kuek was not entitled to the repayment of the money he had paid to the respondents. The court held that the orders of 10 October 2007 remained in effect, and the subsequent orders of 8 February were set aside. The court also considered the effect of rule 63.56.1, which determined that the original costs order continued to be valid despite the subsequent variation and review. Consequently, the court refused Kuek's application for the repayment of the money.

Orders

Orders of the court

Application refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.