Owerhall v Bolton & Swan - [2015] VSC 417

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2015 00420

EERIK JUHANI OWERHALL	Plaintiff
v
BOLTON & SWAN PTY LTD (ACN 153 647 360)	Defendant

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JUDGE:	Bell J
WHERE HELD:	Melbourne
DATE OF HEARING:	7 August 2015
DATE OF JUDGMENT:	7 August 2015
CASE MAY BE CITED AS:	Owerhall v Bolton & Swan
MEDIUM NEUTRAL CITATION:	[2015] VSC 417

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COSTS – jurisdiction of Costs Court – application to set aside settlement agreement – whether relates to ‘assessment, settling, taxation or review of costs’ – reference of question to judge for direction – scope of power of direction – ‘direction’, ‘question’ – Supreme Court Act 1986 (Vic) s 17D, Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 63.51.

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APPEARANCES:	Counsel	Solicitors
For the plaintiff	In person
For the defendant	Mr J Kenny	Kalus Kenny Intelex

HIS HONOUR:

Bolton and Swan Pty Ltd, a firm of solicitors, issued a civil proceeding in the Magistrates’ Court of Victoria against Eerik Juhani Owerhall, Sakary John Malberg and Sirkka Tuulikki Wendy Peltonen. Alleging that those defendants had failed to pay legal costs and disbursements in respect of legal services provided, it claimed the sum of $21,158.24 plus interest and costs against them.

Mr Owerhall later issued a summons for taxation of costs in the Costs Court of this court in respect of those legal costs and disbursements. After making various procedural orders in that proceeding, the Costs Court ordered by consent, among other things, that Mr Owerhall and Bolton & Swan attend a settlement conference. Meanwhile the proceeding in the Magistrates’ Court was adjourned.

The conference occurred on 21 May 2015. Mr Owerhall attended on his own behalf (with the assistance of legal representation) and, pursuant to written authority, on behalf of the other two defendants in the proceeding in the Magistrates’ Court. By a deed of agreement dated that day and signed by Mr Owerhall on behalf of himself and those defendants, three matters were settled, namely:

· the proceeding in the Magistrates’ Court, which was to be withdrawn by Bolton & Swan

· the proceeding in the Costs Court, which was to be withdrawn by Mr Owerhall

· a complaint made to the police by Mr Owerall and Sakary John Malberg about Bolton & Swan, which was to be withdrawn by those complainants

The deed of agreement contained mutual releases in relation to those matters. Further, Mr Owerhall, Sakary John Malberg and Sirkka Tuulikki Wendy Peltonen, on the one hand, and Bolton & Swan on the other hand, signed minutes of consent orders requiring the proceeding in the Magistrates’ Court to be dismissed with no order as to costs. Mr Owerhall and Bolton & Swan signed minutes of consent orders requiring the proceeding in the Costs Court to be dismissed with no order as to costs.

Late in the afternoon of the day of the mediation and after it had concluded, Mr Owerhall notified Bolton & Swan, the two courts and 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 Owerhall v Bolton & Swan

Details

AGLC: Owerhall v Bolton and Swan [2015] VSC 417
Case: [2015] VSC 417
Decision Date: 7 August 2015

CaseChat Overview and Summary

In the Costs Court of Victoria, Owerhall sought to set aside a settlement agreement that had been reached between themselves and Bolton & Swan. The applicants argued that the agreement was not binding due to certain alleged breaches. The nature of the dispute was centred on the interpretation and application of the Supreme Court Act 1986 (Vic) and the Supreme Court (General Civil Procedure) Rules 2005 (Vic), particularly in relation to the court's jurisdiction to entertain the application and the scope of its power to direct a question to a judge for direction.

The primary legal issues before the court were whether the application to set aside the settlement agreement related to the assessment, settling, taxation, or review of costs as per the statutory provisions, and if the court had the authority to direct a question to a judge for direction under the relevant rules. The court had to determine if the application fell within its jurisdiction and if the judge had the requisite authority to provide a direction on the matter.

In its decision, the court held that the application did not fall within the court's jurisdiction as it did not relate to the assessment, settling, taxation, or review of costs. The court also found that the judge did not have the power to direct a question to themselves for direction, as such a direction would be a decision on the merits of the matter, which was beyond the scope of the court's authority under the rules. Consequently, the application was dismissed.

As a result of the court's decision, the settlement agreement between Owerhall and Bolton & Swan was upheld, and the application to set it aside was dismissed. No further orders were made by the court.

Orders