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Nom De Plume Nominees Pty Ltd v Fingal Developments Pty Ltd

Nom De Plume Nominees Pty Ltd v Fingal Developments Pty Ltd

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Case Copied 6 October 2016 14 min read

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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.
[1]Nom de Plume Nominees Pty Ltd v Fingal Developments Pty Ltd [2016] VSCA 159.

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…

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: [2016] VSCA 233
Decision Date: 6 October 2016

CaseChat Overview and Summary

Nom De Plume Nominees Pty Ltd sought an appeal against a decision made by the trial court, with the appeal being heard in the Court of Appeal. The original matter involved a dispute regarding a development agreement and the construction of a residential project. The first respondent, Fingal Developments Pty Ltd, was the developer involved in the project, and the appellant, Nom De Plume Nominees Pty Ltd, was the landowner. The appellant argued that the first respondent had breached the terms of the development agreement, while the first respondent counterclaimed for unpaid amounts due under the agreement. The Court of Appeal was required to consider the apportionment of costs in both the appeal and the trial court.

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.

Orders