Morton v Elgin-Stuczynski & Anor - [2007] VSC 8

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 9160 of 2004

NORMAN MORTON	Plaintiff
v
ROMAN ELGIN-STUCZYNSKI & ANOR	Defendants

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JUDGE:	WILLIAMS J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 December 2006
DATE OF JUDGMENT:	2 February 2007
CASE MAY BE CITED AS:	Morton v Elgin-Stuczynski
MEDIUM NEUTRAL CITATION:	[2007] VSC 8

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COSTS – Award of damages not exceeding one-half of jurisdiction of County Court - Application for order under r 63.24 that the plaintiff’s entitlement to costs not be limited to those recoverable if claim brought in County Court - Whether special circumstances warranting departure from r 63.24 in exercise of Court’s discretion – Whether refusal of County Court registry to accept initiating process amounts to special circumstances - Whether timing of delivery of judgment amounts to special circumstances - Application refused

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P.J. Hayes	Michael Creelman
For the Defendant	Mr M Campbell	Dianna Cohen

TABLE OF CONTENTS

Rule 63.24............................................................................................................................................. 2

The Court’s discretion....................................................................................................................... 3

Conclusion........................................................................................................................................... 5

HER HONOUR:

Judgment was given in favour of the plaintiff in this matter on 31 July 2006. The plaintiff succeeded in his claim for repayment of a debt under a loan agreement made between himself and the defendants. The defendants were ordered to pay the plaintiff’s costs of the proceeding.

The plaintiff now applies for an order under r. 63.24 of the Supreme Court (General Civil Procedure) Rules 2005 that he be entitled to costs calculated in accordance with the applicable scale for a proceeding brought in the Supreme Court. The plaintiff makes the application because he recovered only $98,045.12 : being an amount less than $100,000.00, or half the amount to which the jurisdiction of the County Court was limited at the relevant time. The amount recovered was comprised of the sum of $30,000, together with simple interest to the date of judgment.

The plaintiff contends, and it is not disputed, that he would have been entitled to the sum of $100,000 some six and a half months after 31 July 2006, had judgment been given on that later date.

Rule 63.24

The applicable r 63.24 is in the following form:

63.24 Money claim in wrong court
(1) Subject to paragraph (1.1), … where in a proceeding for debt or damages (other than a proceeding in which the jurisdiction of the County Court is unlimited) the plaintiff recovers by judgment or otherwise an amount (exclusive of costs) not exceeding one-half of the amount to which the jurisdiction of the County Court is limited, the plaintiff shall, unless the Court otherwise orders, be entitled only to the costs to which the plaintiff would have been entitled if the plaintiff had brought the proceeding in the County Court less an amount equal to the additional costs properly incurred by the defendant by reason of the proceeding having been brought in the Supreme Court instead of the County Court, but shall not be required to pay to the…

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 Morton v Elgin-Stuczynski & Anor

Details

AGLC: Morton v Elgin-Stuczynski [2007] VSC 8
Case: [2007] VSC 8
Decision Date: 2 February 2007

CaseChat Overview and Summary

In Morton v Elgin-Stuczynski & Anor, the plaintiff sought an order under r 63.24 that the defendant’s entitlement to costs not be limited to those recoverable if the claim had been brought in the County Court. The dispute was rooted in a claim for damages related to a motor vehicle accident. The plaintiff argued that the refusal of the County Court registry to accept the initiating process and the timing of the delivery of judgment constituted special circumstances warranting a departure from the general rule.

The legal issues before the court revolved around whether the special circumstances identified by the plaintiff warranted the court exercising its discretion under r 63.24 to allow costs beyond what would be recoverable if the claim had been brought in the County Court. The court needed to determine if the refusal of the registry and the timing of the judgment delivery were sufficient to constitute special circumstances.

The court found that the refusal of the County Court registry to accept the initiating process did not amount to special circumstances as it was not within the court's control. Additionally, the timing of the delivery of judgment was not deemed a special circumstance either. The court concluded that the plaintiff had not established special circumstances warranting a departure from the rule. Consequently, the application was refused.

The court did not make any final orders beyond the refusal of the application. The plaintiff’s entitlement to costs remained limited to those recoverable if the claim had been brought in the County Court.

Orders