SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2015 0041
| NOM DE PLUME NOMINEES PTY LTD | Appellant |
| v | |
| FINGAL DEVELOPMENTS PTY LTD | First Respondent |
| and | |
| ASCOT VALE SELF STORAGE CENTRE PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) [NO 2] | Second Respondent |
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| JUDGES: | TATE and McLEISH JJA and GINNANE AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | Determined on the papers |
| DATE OF JUDGMENT: | 6 October 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 233 |
| JUDGMENT APPEALED FROM: | [2015] VSC 44 (Sifris J) |
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COSTS – Appeal – Appellant substantially successful but first respondent resisted some grounds and defended part of judgment – Apportionment of costs – First respondent to pay 80 per cent of appellant’s costs of appeal.
COSTS – Trial – First respondent successful on part of claim and in defending appellant’s counterclaim – Apportionment of costs – Appellant to pay 40 per cent of first respondent’s costs of trial.
PRACTICE AND PROCEDURE – Interest – Calculation – Supreme Court Act 1986 s 60.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr B W Walker SC with Mr B Gibson | SBA Law |
| For the First Respondent | Mr D J Williams QC with Mr N McAteer | Jane Underwood Lawyers |
| For the Second Respondent | No appearance |
TATE JA
McLEISH JA
GINNANE AJA:
The Court delivered judgment allowing the appeal in this matter on 14 July 2016.[1] The Court invited the parties to file written submissions addressing the question of costs and other matters as described below. Those submissions have now been received. These reasons should be read along with the Court’s earlier reasons.
The issues remaining to be determined fall under four headings. The first concerns the calculation of the amount which the appellant, Nom de Plume Nominees Pty Ltd (‘NDP’), was overpaid in respect of undrawn fees said to be owed to it by the respondent Fingal Developments Pty Ltd (‘Fingal’). That amount consists of a principal sum together with interest charged by NDP in respect of the amount overpaid. The second issue concerns the calculation of interest on the ultimate judgment sum. Thirdly, the question of costs both on the appeal and at trial remains to be determined. Finally, the parties have made submissions as to the treatment of monies paid by NDP pursuant to earlier court orders.
Undrawn fees
It will be recalled that Fingal succeeded at trial in recovering $152,097 by way of undrawn fees. On the appeal, it was held that Fingal was only entitled ‘to recover the balance represented by the amount which NDP claimed and now accepts that it received in excess of its entitlement, namely $72,097, along with any interest charged in respect of the excess charges in question’.[2]
[2]Ibid [206].
NDP submits that the amount of overpaid undrawn fees was $79,854.31, consisting of $72,096.77 in overpaid undrawn fees and $7758.54 by way of interest charged on those fees. Correcting an arithmetic error, the amount claimed by…
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- Case
- [2016] VSCA 233
- Decision Date
CaseChat Overview and Summary
The central legal issues in the case were the apportionment of costs for both the appeal and the trial court. The appellant argued that it should be awarded costs in its entirety due to its substantial success on appeal. The first respondent contended that it should not be required to pay the full costs as it had successfully defended certain grounds of appeal and parts of the judgment. In the trial court, the first respondent was successful in part of its claim and in defending the counterclaim, and therefore, the court needed to determine the appropriate costs apportionment for the trial proceedings.
The Court of Appeal held that the appellant was substantially successful on appeal but acknowledged that the first respondent had defended some of the grounds of appeal and parts of the judgment. Consequently, the Court of Appeal determined that the first respondent should pay 80 per cent of the appellant's costs of the appeal. Regarding the trial court, the Court of Appeal found that the first respondent was successful on part of its claim and in defending the counterclaim, and thus, the appellant should pay 40 per cent of the first respondent's costs of the trial. The Court of Appeal also addressed the calculation of interest under the Supreme Court Act 1986 s 60, which was relevant to the costs apportionment.
The Court of Appeal made orders that the first respondent, Fingal Developments Pty Ltd, should pay 80 per cent of Nom De Plume Nominees Pty Ltd's costs of the appeal, while Nom De Plume Nominees Pty Ltd should pay 40 per cent of Fingal Developments Pty Ltd's costs of the trial. The Court of Appeal further directed that the interest on the amounts payable be calculated in accordance with the Supreme Court Act 1986 s 60.
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