Levy v Harpur - [2004] VSC 461

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 6796 of 1999

FRANK ERNEST WILLIAM LEVY AND OTHERS	Plaintiffs
who sue as the Executors of the Estate of PETER THOMAS EVAN RAND deceased
v
PAUL HENRY HARPUR AND OTHERS	Defendants
AND BETWEEN
KAI TAK PTY LTD (ACN 005 568 721) as Trustee of the P & GR Harpur Trust	Plaintiff by Counterclaim
And
FRANK ERNEST WILLIAM LEVY AND OTHERS	Defendants by Counterclaim

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JUDGE:	HARPER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 AUGUST 2004
DATE OF JUDGMENT:	16 NOVEMBER 2004
CASE MAY BE CITED AS:	LEVY & ORS v HARPUR & ORS
MEDIUM NEUTRAL CITATION:	[2004] VSC 461

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Costs – Discretion to award – Relevant considerations – Plaintiffs successful on judgment obtained pursuant to r.23.01(2) – Application for such judgment made five years after proceeding instituted – Interlocutory steps taken in the interim on other issues raised by the statement of claim – Whether plaintiffs entitled to costs of entire proceeding – First and second defendants not necessary parties – Entitlement of these defendants to their costs.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr A.J. Myers QC with Mr R. Rosenberg	Sackville Wilks & Co
For the Defendants	Mr D.R. Meagher QC with Mr M. Wise	Mills Oakley Lawyers
For the Third Defendant to Counterclaim	Mr D. Weinberger	Kliger Partners

HIS HONOUR:

The late Peter Thomas Evan Rand died on 7 October 1997. He left a will, the last of many, dated 8 September 1997. On 23 December that year, the present plaintiffs, as executors of his estate, made an application for a grant of probate of that will. On 3 February 1998, the second defendant (Mrs Pamela Harpur) filed particulars of objection. By paragraph 1 of that document, the effect of a deed of trust, which was alleged to have been made by the deceased on 17 August 1997, was raised as an issue. As a consequence, on 10 February 1998 the first plaintiff applied by originating motion for orders that letters of administration pendente lite to Mr Rand's estate be granted to him. The application was successful; and on 30 July 1998 Beach J granted the orders sought.

Protracted litigation has followed. The application for probate was referred to a judge of this Court and came on for hearing on 23 March 1999. That day, terms of settlement were signed. Each of the present defendants was a party to the agreement thus effected. There is no suggestion that the terms are not binding on them all.

Paragraph 3 of the terms of settlement provides that, within six months after the day on which the terms are signed, the executors as plaintiffs will commence proceedings:

“…to test the validity of the deed of trust dated 27 August 1997 and made or alleged to have been made by the deceased. The defendants to the fresh proceeding[s] will be Kai Tak Pty. Ltd. in its capacity as the trustee of the P…

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 Levy v Harpur

Details

AGLC: Levy v Harpur [2004] VSC 461
Case: [2004] VSC 461
Decision Date: 16 November 2004

CaseChat Overview and Summary

In the matter of Levy v Harpur, the plaintiffs, Levy, sought costs associated with a legal proceeding that had been ongoing for several years. The dispute centred on the plaintiffs' entitlement to costs, particularly in light of a judgment obtained under rule 23.01(2) of the relevant court rules. The application for this judgment was made five years after the initial proceeding was instituted, and various interlocutory steps had been taken in the interim concerning other issues raised by the statement of claim. The primary legal issue before the court was whether the plaintiffs, having been successful in their claim, were entitled to costs of the entire proceeding. Additionally, the court had to determine whether the first and second defendants, who were not considered necessary parties, were entitled to their costs.

The court examined the principles and considerations relevant to the discretion of awarding costs. It noted that the plaintiffs had been successful in obtaining a judgment under the specified rule, but the application for this judgment was made significantly after the proceeding was commenced. The court also considered the interim steps taken on other issues and the overall progress of the case. The court concluded that, while the plaintiffs were entitled to some costs for the successful judgment, the significant delay and the nature of the interim steps warranted a limitation on the costs awarded. Regarding the first and second defendants, the court found that, as they were not necessary parties, they were not entitled to costs.

The court ordered that the plaintiffs were entitled to a portion of their costs but not the entirety of the proceeding's costs. The specific amount was determined based on the court's assessment of the relevant considerations. The first and second defendants were not granted any costs as they were deemed not necessary parties. This decision highlights the careful balancing act the court undertakes when determining costs, taking into account the progress of the case and the specific circumstances of each party involved.

Orders