Robert Deutsch v Erwin Deutsch (No 2) - [2013] VSC 15

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

S CI 2008 05515

BETWEEN:

ROBERT DEUTSCH & ORS	Plaintiffs
- and -
ERWIN DEUTSCH & ORS	Defendants

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JUDGE:	HARGRAVE J
WHERE HELD:	Melbourne
DATES OF HEARING:	8 February 2013
DATE OF JUDGMENT:	8 February 2013
CASE MAY BE CITED AS:	Robert Deutsch & Ors v Erwin Deutsch & Ors (No 2)
MEDIUM NEUTRAL CITATION:	[2013] VSC 15

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COSTS – Successful plaintiffs lost on substantial issue – Both parties at fault for litigating the issue – Issue had been compromised by terms of settlement – Justice requires all parties pay their own costs of and incidental to the issue – Plaintiffs awarded 75 per cent of their costs.

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APPEARANCES:	Counsel	Solicitors
For Plaintiffs	Mr S Anderson SC with Mr J Slattery	Holding Redlich
For the First Defendant	Mr N Jones	Gleeson & Co Solicitors

HIS HONOUR:

These reasons concern the costs of the proceeding. They assume familiarity with my principal reasons.[1] I will use the same terminology in these reasons.
[1]Robert Deutsch & Ors v Erwin Deutsch & Ors [2012] VSC 227 (‘Principal Reasons’).

In order to consider the rival arguments concerning costs, it is necessary to refer to some procedural history.

The issues as finally litigated were described in paragraphs [12] to [30] of the principal reasons.

In paragraph [42] of the principal reasons, I noted that this dispute could have been wholly or substantially avoided by the parties appointing a new trustee or one of them seeking a Court order to that effect. On this issue, Erwin informed the Court that he received advice to this effect but chose not to accept it.[2] By the time the parties joined in an application for that course to be adopted, the proceeding had been fixed for trial, and another judge of the Court determined that the trial should take place prior to the appointment of any new trustee.[3]
[2]Principal Reasons, [173].
[3]Deutsch v Deutsch [2011] VSC 345.

After settlement of the proceeding in 2008, Robert and the potential beneficiaries applied to the Court to enforce the terms of settlement. The Court fixed a two day hearing for that purpose in November 2008. At that time, Erwin’s contentions: that he had not breached or repudiated the terms of settlement, that time was not of the essence of the terms of settlement and that the terms of settlement had in any event been frustrated could have been dealt with by the Court. If a trial had then taken place concerning the issues not released by the terms of settlement, the proceeding could have been brought to an end within a short time.[4]
[4]Ibid, [88]-[102].

That application to enforce the terms of settlement was abandoned by the parties. Robert and the potential beneficiaries then filed a statement of claim and this proceeding eventually reached trial. In summary, the Court decided:

(1) The terms of settlement constituted an ‘accord and conditional satisfaction’.[5]
[5]Ibid, [86].

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 Robert Deutsch v Erwin Deutsch (No 2)

Details

AGLC: Robert Deutsch v Erwin Deutsch (No 2) [2013] VSC 15
Case: [2013] VSC 15
Decision Date: 8 February 2013

CaseChat Overview and Summary

Robert Deutsch, the plaintiff, and Erwin Deutsch, the defendant, were involved in a dispute concerning a property settlement agreement. The case was heard in the Supreme Court of Victoria. The central issue was whether the plaintiffs were entitled to costs incurred in a particular matter, despite being unsuccessful on a significant issue, and if so, to what extent.

The legal question before the court was whether the plaintiffs were entitled to recover costs in relation to a particular matter, even though they did not succeed on a substantial issue. The court also had to consider whether both parties were at fault for litigating the issue and whether the issue had been compromised by the terms of the settlement agreement. The court had to determine whether justice required both parties to bear their own costs and if so, what proportion of those costs should be awarded to the plaintiffs.

The court found that both parties were at fault for litigating the issue and that the issue had been compromised by the terms of the settlement agreement. The court held that justice required both parties to pay their own costs of and incidental to the issue. However, given the circumstances, the court awarded the plaintiffs 75 per cent of their costs. The reasoning behind this decision was that while both parties were at fault, the plaintiffs had been more successful overall, and the court deemed it just to award them a majority of their costs. The court did not award costs for the unsuccessful issue, as both parties were found to be at fault for litigating it.

Orders