Ribchenkov v Suncorp-Metway Limited - [2001] FCA 151

FEDERAL COURT OF AUSTRALIA
Ribchenkov v Suncorp-Metway Limited [2001] FCA 151
COSTS – where claim and cross claim each successful in part and unsuccessful in part – whether apportionment of costs is appropriate in discretion – where party entitled to claim costs on ‘solicitor and own client’ basis pursuant to mortgage.
Federal Court of Australia Act 1976 (Cth), s 43
Leda Holdings Pty Ltd v Oraka Pty Ltd [1999] FCA 444, followed
Quadrascan Graphics Pty Ltd v Crosfield Electronics ANZ Pty Ltd [1995] FCA 319, followed
Gomba Holdings (UK) Ltd v Minories Finance Ltd [1993] Ch 171, cited
Atlas Metal Company v Miller [1898] 2 QB 500, cited
Medway Oil and Storage Co Ltd v Continental Contractors Ltd [1929] AC 88, cited
Smith v Madden (1946) 73 CLR 129, cited
Ribchenkov v Suncorp Metway Limited (2000) 175 ALR 650, referred to
ALEVTINA RIBCHENKOV v SUNCORP-METWAY LIMITED ACN 010 831 722, SEBASTIAN ANTHONY SAPUPPO & AUSTRALIAN PACIFIC PROFESSIONAL INDEMNITY INSURANCE COMPANY LTD ACN 072 266 909
QG 33 OF 1997
SPENDER J
BRISBANE
2 MARCH 2001

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QG 33 OF 1997

BETWEEN:

ALEVTINA RIBCHENKOV
Applicant/Cross Respondent to the Third Cross Claim

AND:

SUNCORP-METWAY LIMITED ACN 010 831 722
First Respondent/First and Third Cross Claimant

SEBASTIAN ANTHONY SAPUPPO
Second Respondent/Second Cross Claimant/Cross Respondent to the First Cross Claim

AUSTRALIAN PACIFIC PROFESSIONAL INDEMNITY INSURANCE COMPANY LTD ACN 072 266 909
Cross Respondent to the Second Cross Claim

JUDGE:

SPENDER J

DATE OF ORDER:

2 MARCH 2001

WHERE MADE:

BRISBANE

THE COURT DECLARES THAT:
It would be unconscionable for Suncorp-Metway Limited to enforce the bill of mortgage L368425D against Alevtina Ribchenkov in respect of the advances in April 1994 and July 1995.
THE COURT ORDERS THAT:
(1)There be judgment for Suncorp-Metway Limited against Alevtina Ribchenkov in the amount of $190,079.47.

(2)Judgment be entered in favour of Alevtina Ribchenkov against Sebastian Anthony Sapuppo in the amount of $190,079.47.

(3)Suncorp-Metway pay to Alevtina Ribchenkov the costs of and incidental to the issue of whether the bank was entitled to pursue the applicant in respect of the sums constituting, and incidental to, the advances in April 1994 and June 1995.

(4)Alevtina Ribchenkov pay to Suncorp-Metway Limited the costs of and incidental to the claim by Suncorp-Metway Limited based on the advance in 1992, to be taxed on a ‘solicitor and own client’ basis.

(5)Suncorp-Metway pay the costs of Sebastian Anthony Sapuppo of the cross-claim which Suncorp-Metway Limited brought against him.

(6)Sebastian Anthony Sapuppo pay to Alevtina Ribchenkov the costs she is ordered to pay to Suncorp-Metway Limited pursuant to order 4 above.

(7)Sebastian Anthony Sapuppo pay the costs of Alevtina Ribchenkov of her action against him.

(8)Australian Pacific Professional Indemnity Insurance Company Ltd indemnify Sebastian Anthony Sapuppo against the judgment referred to in order (2) and in respect of the costs he is ordered to pay to Alevtina Ribchenkov, but such indemnity is subject to a deductible amount of $7,500.

(9)Australian Pacific Indemnity…

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: [2001] FCA 151
Decision Date: 2 MARCH 2001

CaseChat Overview and Summary

The case of Ribchenkov v Suncorp-Metway Limited involved a dispute between Alevtina Ribchenkov and Suncorp-Metway Limited, with Sebastian Anthony Sapuppo also being a party to the proceedings. The central issue was a claim by Suncorp-Metway against Ribchenkov for outstanding debts, which was partially successful, and a cross-claim by Ribchenkov against Sapuppo, which was also partially successful. The matter was heard in the Federal Circuit Court of Australia.

The primary legal issues the court needed to address were the apportionment of costs between the parties, considering the partial success of both the main claim and the cross-claim. The court had to determine whether it was appropriate to apportion costs and, if so, how to do so in a fair and equitable manner. Additionally, the court had to consider the implications of a mortgage clause on the entitlement to costs under the ‘solicitor and own client’ basis.

The court ruled that apportionment of costs was appropriate given the partial success of both the main claim and the cross-claim. It ordered that Suncorp-Metway Limited was to pay Ribchenkov’s costs related to the issue of whether the bank was entitled to pursue her for certain debts. Conversely, Ribchenkov was to pay Suncorp-Metway Limited the costs associated with the claim based on a 1992 advance, to be taxed on a ‘solicitor and own client’ basis. Furthermore, the court determined that Sapuppo was to bear the costs of Ribchenkov’s action against him and that Ribchenkov was to indemnify Sapuppo for certain costs, subject to a deductible amount. Finally, the court addressed the costs related to the cross-claims, ruling that Sapuppo was to be indemnified by his insurer for specified costs, subject to a deductible.

In summary, the court awarded judgment in part to both Ribchenkov and Suncorp-Metway Limited, with specific orders regarding the apportionment of costs and indemnities. The final orders ensured that each party bore their own costs where they were unsuccessful, and that successful parties were entitled to certain indemnities and costs from other parties.

Orders

Orders of the court

(1) There be judgment for Suncorp-Metway Limited against Alevtina Ribchenkov in the amount of $190,079.47.

(2) Judgment be entered in favour of Alevtina Ribchenkov against Sebastian Anthony Sapuppo in the amount of $190,079.47.

(3) Suncorp-Metway pay to Alevtina Ribchenkov the costs of and incidental to the issue of whether the bank was entitled to pursue the applicant in respect of the sums constituting, and incidental to, the advances in April 1994 and June 1995.

(4) Alevtina Ribchenkov pay to Suncorp-Metway Limited the costs of and incidental to the claim by Suncorp-Metway Limited based on the advance in 1992, to be taxed on a ‘solicitor and own client’ basis.

(5) Suncorp-Metway pay the costs of Sebastian Anthony Sapuppo of the cross-claim which Suncorp-Metway Limited brought against him.

(6) Sebastian Anthony Sapuppo pay to Alevtina Ribchenkov the costs she is ordered to pay to Suncorp-Metway Limited pursuant to order 4 above.

(7) Sebastian Anthony Sapuppo pay the costs of Alevtina Ribchenkov of her action against him.

(8) Australian Pacific Professional Indemnity Insurance Company Ltd indemnify Sebastian Anthony Sapuppo against the judgment referred to in order (2) and in respect of the costs he is ordered to pay to Alevtina Ribchenkov, but such indemnity is subject to a deductible amount of $7,500.

(9) Australian Pacific Indemnity Insurance Company Ltd pay to Sebastian Anthony Sapuppo the costs of and incidental to Sebastian Anthony Sapuppo’s cross claim against Australian Pacific Professional Indemnity Insurance Company Ltd.

(10) Australian Pacific Professional Indemnity Insurance Company Ltd should indemnify Sebastian Anthony Sapuppo for his costs in defending the action brought against him by Alevtina Ribchenkov and his costs of the cross claim brought against him by Suncorp Metway Limited, such indemnity being subject to the deductible amount of $7,500.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

SPENDER J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: SPENDER J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 33 OF 1997

BETWEEN:	ALEVTINA RIBCHENKOV Applicant/Cross Respondent to the Third Cross Claim
AND:	SUNCORP-METWAY LIMITED ACN 010 831 722 First Respondent/First and Third Cross Claimant SEBASTIAN ANTHONY SAPUPPO Second Respondent/Second Cross Claimant/Cross Respondent to the First Cross Claim AUSTRALIAN PACIFIC PROFESSIONAL INDEMNITY INSURANCE COMPANY LTD ACN 072 266 909 Cross Respondent to the Second Cross Claim
JUDGE:	SPENDER J
DATE OF ORDER:	2 MARCH 2001
WHERE MADE:	BRISBANE