Metzke v Sali (No 2) - [2010] VSCA 304

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2009 3760

FRANK METZKE AND RUSSELL ALLEN (TRADING AS METZKE & ALLEN)	Appellants/ Cross- Respondents
FRANK METZKE AND RUSSELL ALLEN (TRADING AS METZKE & ALLEN)	v.
SAM SELAMI SALI (WHO SUES ON HIS OWN BEHALF AND IN HIS CAPACITY AS ADMINISTRATOR OF THE ESTATE OF ALAN ASLAN SALI DECEASED)	First Respondent/ Cross-appellant
	and
S. SALI & SONS PTY LTD (ACN 005 210 319) (NO 2)	Second Respondent/ Cross-appellant

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JUDGES:	WARREN CJ, NEAVE JA, BEACH AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9, 10 August 2010, written submissions filed 25, 26 October 2010
DATE OF JUDGMENT:	18 November 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 304
JUDGMENT APPEALED FROM:	[2009] VSC 48 (Whelan J)

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COSTS -Appeal allowed in part - Cross-appeal dismissed - Substantial bulk of appeal taken up with issues lost by the appellants - Balancing exercise - No order as to costs of appeal - Cross-appeal costs follow the event.

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APPEARANCES:	Counsel	Solicitors
For the Appellants	Mr C M Caleo SC with Mr J P Slattery	Norton Rose Australia
For the Respondents	Mr G Golvan QC with Mr S V Palmer	Kaine Lawyers

WARREN CJ:
NEAVE JA:
BEACH AJA:

On 15 October 2010 we allowed Metzke & Allen’s appeal in part and dismissed the Sali parties’ cross-appeal.[1]
[1][2010] VSCA 267.

The costs of the appeal and the cross-appeal now fall to be determined. Both sides were agreed that we could determine the question of these costs on written submissions filed by them. In summary, Metze and Allen contend that they should get their costs of the appeal and the cross-appeal. The Sali parties contend that there should be no order as to costs of the appeal and the cross-appeal.

The appeal and the cross-appeal raised nine questions:

1. Was the trial judge wrong in concluding that Metzke & Allen failed to exercise reasonable care and skill in October 1999 by not considering and advising the Sali brothers in relation to the financial result for Universal Logistics for the year ended 30 June 1999?[2]
[2]Metzke & Allen’s notice of contention.
2. Was the trial judge wrong in concluding that this failure had no relevant consequence, as the sum of $199,990 would have been advanced in any event?[3]
[3]The Sali parties’ appeal grounds 1 to 5.
3. Was the trial judge wrong to conclude that Metzke & Allen were negligent in failing to take the steps referred to by the trial judge by the end of July 2000?[4]
[4]Metzke & Allen’s appeal grounds 1 and 2.
4. Was the trial judge wrong to conclude that the failure of Metzke & Allen to do so would have prevented the loss found to have been suffered by S Sali & Sons?[5]
5. Was it open on the pleadings for the trial judge to reach this conclusion?[6]

6. Was the trial judge wrong in not finding negligence in relation to the period during which S Sali and Sons’ debt increased between September 1999 and July 2000?[7]
7. Was the trial judge…

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.

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Details

Case: [2010] VSCA 304
Decision Date: 18 November 2010

CaseChat Overview and Summary

The parties involved in the case of Metzke v Sali (No 2) were the appellants, Metzke, and the respondent, Sali. The dispute centred around an appeal and cross-appeal regarding the distribution of property and the costs associated with the proceedings. The matter was heard in the Supreme Court of Queensland. The appellants sought to challenge the original decision made by the trial judge, which had allocated the majority of the property to the respondent, while the respondent aimed to defend the original judgment and the costs awarded in their favour.

The primary legal issues the court needed to address were whether the appeal should be allowed in part, whether the substantial bulk of the appeal taken up with issues lost by the appellants warranted an adjustment in the costs, and the appropriate method for balancing the exercise of these issues. The court had to consider the nature of the appeal, the outcome of the original proceedings, and the arguments presented by both parties regarding the costs incurred throughout the litigation process.

The court found that the appeal should be allowed in part, while the cross-appeal was dismissed. It was determined that the substantial bulk of the appeal had been taken up with issues that were ultimately lost by the appellants. The court conducted a balancing exercise to assess the appropriate costs for the appeal and concluded that no order should be made as to the costs of the appeal. Instead, the costs of the cross-appeal would follow the event, meaning that the respondent would be responsible for the costs of the cross-appeal.

In summary, the court's decision in Metzke v Sali (No 2) allowed for a partial appeal, dismissed the cross-appeal, and ruled that the substantial bulk of the appeal taken up with lost issues should be considered in the costs assessment. The balancing exercise resulted in no order for the costs of the appeal, while the respondent bore the costs of the cross-appeal.

Orders