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Mond v Berger

Mond v Berger

Case [2004] VSC 150 3 May 2004

Costs

Commercial Arbitration Act

Arbitration

Commercial Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 8881 of 2001

DAVID MOND AND BARRY MOND	Plaintiffs
v
DAYAN RABBI ISAAC DOV BERGER & Ors	Defendants

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JUDGE:	DODDS‑STREETON J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 April 2004
DATE OF JUDGMENT:	3 May 2004
CASE MAY BE CITED AS:	Mond v Berger
MEDIUM NEUTRAL CITATION:	[2004] VSC 150	First Revision 18 May 2004

COSTS - Costs of the proceeding to set aside arbitral award pursuant to section 42 of Commercial Arbitration Act – Whether costs on an indemnity, solicitor and client or party and party basis – Whether delinquent antecedent conduct - Whether hopeless points argued – Whether conduct or applications by defendants which prolonged the trial – Whether reduction appropriate where plaintiffs abandoned issues at outset of trial, or failed on particular issues; Whether arbitrators liable for costs of the proceeding – Effect of section 51 of Commercial Arbitration Act – Whether arbitrators participated in proceeding actively and took adversarial role – Arbitrators important witnesses, but not protagonists in conduct and direction of defensive litigation - Whether defendants liable for costs of the failed arbitration under section 36 of Commercial Arbitration Act – Defendants who were not complicit in arbitrator’s misconduct not liable for costs of failed arbitration - Arbitrators not liable for costs of the failed arbitration - Arbitrators not experienced in secular law and sat as a zabla under Jewish law to determine issues including non-commercial and religious questions ‑Arbitrators to refund or forgo their fees for the arbitration pursuant to section 49 of Commercial Arbitration Act, - Commercial Arbitration Act 1984 (Vic); PCRZ Investments Pty Ltd v National Golf Holdings Ltd and Anor [2002] VSCA 24 (14 March 2002); Colgate Palmolive v Cussons Pty Ltd [1993] 118 ALR 248; Ugly Tribe Co. Pty Ltd v Sikola [2001] VSC 189 (14 June 2001); Fountain^TMSelected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397; MNFM Property Pty Ltd and Ors v Citibank Ltd (2001) 109 FCR 77; Ali v Hartley Poynton Pty Ltd (No.3) [2002] VSC 292 (26 July 2002); Lendon v Keen (1918) KB 994; Du Toit v Vale [1993] WAR 138; Sinclair and Lindsay Sinclair Pty Ltd v Bayly and Earle, Unreported, Supreme Court of Victoria, Justice Nathan, 19 October 1994; Stannard v Sperway Constructions Pty Ltd [1990] VR 673; Najjar v Haines [1991] 25 NSWLR 224; Mond v Berger & Ors [2003] VSC 450; Traynor v Panan Constructions Pty Ltd (1988) 7 Aust. Construction LR 47; Giustiniano Nominees Pty Ltd v The Minister for Works BC 9502704.

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr Magee Q.C. Mr R. J. Harris	Weston & Weston
For the 1^st-3^rd Defendants	Herbert Geer & Rundle
For the 4^th Defendant	Mr M. Sifris S.C.	Corrs Chambers Westgarth
For the 5^th - 17^th and 19^th -24^th Defendants	Mr S. Anderson	Holding Redlich

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 Mond v Berger

Details

AGLC: Mond v Berger [2004] VSC 150
Case: [2004] VSC 150
Decision Date: 3 May 2004

CaseChat Overview and Summary

The case of Mond v Berger came before the Supreme Court of Victoria, where the parties were engaged in a dispute related to the enforcement and setting aside of an arbitral award. The proceedings were initiated by the plaintiff, Mond, who sought to set aside an arbitral award made in favour of the defendant, Berger, and others. The case involved complex issues related to the enforcement of the award, the conduct of the arbitration, and the costs associated with the litigation.

The legal issues before the court included the determination of the appropriate basis for awarding costs in the proceeding to set aside the arbitral award, whether the costs should be on an indemnity, solicitor and client, or party and party basis. The court also needed to decide whether the antecedent conduct of the parties was delinquent, whether any points argued were hopeless, and if the trial was prolonged due to the conduct or applications by the defendants. Additionally, the court had to determine the liability for costs of the proceeding, whether the arbitrators were liable for the costs of the failed arbitration, and if the defendants were liable for the costs under section 36 of the Commercial Arbitration Act.

The court held that the costs of the proceeding should be on a party and party basis, reflecting the conduct of the parties and the nature of the issues. The court found that the antecedent conduct of the parties was not delinquent, and there were no hopeless points argued. However, the court did find that the trial was prolonged by the conduct or applications by the defendants, which warranted a reduction in costs. The court also found that the arbitrators were not liable for the costs of the failed arbitration as they did not participate actively in the defensive litigation and were not protagonists in the conduct of the proceedings. Furthermore, the defendants who were not complicit in the arbitrator’s misconduct were not liable for the costs of the failed arbitration. The court ordered that the arbitrators refund or forgo their fees for the arbitration pursuant to section 49 of the Commercial Arbitration Act.

The final orders of the court included the setting aside of the arbitral award, a direction that the defendants pay the plaintiff's costs of the proceeding on a party and party basis, and an order that the arbitrators refund or forgo their fees. This decision provided clarity on the allocation of costs in complex arbitration proceedings and the responsibilities of arbitrators and parties in such disputes.

Orders