Lidgett v Lidgett (No 2) - [2024] VSC 43

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST

S ECI 2023 01185

BETWEEN:

SIMON JOHN LIDGETT	Plaintiff
v
JILLIAN ROSEMARY LIDGETT & ANOR (according to the attached Schedule)	Defendants

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JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	5 February 2024
DATE OF JUDGMENT:	15 February 2024
CASE MAY BE CITED AS:	Lidgett v Lidgett (No 2)
MEDIUM NEUTRAL CITATION:	[2024] VSC 43

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PRACTICE AND PROCEDURE – Costs – Interlocutory application by defendant to appoint a receiver and manager to a partnership business – Interlocutory injunction application by plaintiff to prevent the sale of farm business assets of a partnership – Whether costs should be ordered in favour of the successful applicant – Whether costs should be taxed immediately – Supreme Court (General Civil Procedure) Rules 2015 rr 63.20, 63.20.1 – Dale v Clayton Utz (a firm) (No 3) [2013] VSC 593 referred to – Costs ordered to be paid to successful applicant in the receivership application and parties’ costs of the injunction application be their costs in the proceeding, but no order that costs be taxed and paid forthwith.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D Clough	Cinque Oakley Bryant Lawyers
For the First Defendant	Mr C Troung KC	Heinz Law

HER HONOUR:

These reasons concern the costs consequences of two interlocutory applications determined by me on 12 December 2023.[1] The first application was an application by the first defendant (‘Jill’) to appoint a receiver and manager to the assets and undertaking of the SJ & JR Lidgett Partnership (‘partnership business’). Jill is the mother of the plaintiff (‘Simon’). Jill and Simon are also equal partners in the partnership, and are in dispute about the ownership and future ownership of the property from which the partnership business is operated (‘Highton farm’).
[1]Lidgett v Lidgett [2023] VSC 743 (‘primary reasons’).

The receivership application was filed on 3 July 2023. In response, on 21 July 2023 Simon filed an application for an interlocutory injunction to restrain Jill from taking any steps to sell or otherwise dispose of any assets of the partnership business. Both the receivership application and the injunction application (‘applications’) were heard together over one and a half days on 28 and 29 November 2023.

The issues in the proceeding, the applications, and the evidence adduced and submissions advanced in relation to the applications were canvassed at some length in the primary reasons.

In some respects, the subject matter of the applications is subsidiary to Simon’s primary claim in this proceeding. Simon’s primary claim in this proceeding is based upon alleged representations made by Jill with respect to the future ownership of the Highton farm, which is a valuable property. The livestock bred and raised on the Highton farm are assets of the partnership, and were also said to have been the subject of a representation by Jill to Simon regarding their future ownership, but have a relatively modest value compared with the Highton…

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 Lidgett v Lidgett (No 2)

Details

AGLC: Lidgett v Lidgett (No 2) [2024] VSC 43
Case: [2024] VSC 43
Decision Date: 15 February 2024

CaseChat Overview and Summary

In Lidgett v Lidgett (No 2), the matter before the court was a dispute between siblings regarding the management and control of a partnership farm business. The defendant sought to appoint a receiver and manager to oversee the partnership, while the plaintiff sought an interlocutory injunction to prevent the sale of farm business assets. The case was heard in the Supreme Court of Victoria.

The legal issues the court needed to decide included whether costs should be awarded in favour of the successful party in the receivership application and whether those costs should be taxed and paid immediately. The court also needed to determine whether the parties' costs of the interlocutory injunction application should be their costs in the proceeding. These issues were considered in light of the relevant provisions of the Supreme Court (General Civil Procedure) Rules 2015 and the principles established in Dale v Clayton Utz (a firm) (No 3).

The court found that costs should be awarded to the successful party in the receivership application, but no order should be made that those costs be taxed and paid forthwith. Additionally, the parties' costs of the interlocutory injunction application should be their costs in the proceeding. The court reasoned that the circumstances did not warrant immediate taxation and payment of costs, and the parties should bear their own costs for the interlocutory injunction application. This decision was influenced by the principles discussed in Dale v Clayton Utz.

No further orders were made regarding the taxation and payment of costs. The parties were left to bear their own costs for the interlocutory injunction application. The court's decision in Lidgett v Lidgett (No 2) provides guidance on the appropriate approach to costs in interlocutory applications, particularly in cases involving partnership disputes and the appointment of receivers and managers.

Orders