2.Set aside orders 2 and 3 of the Court of Appeal of the Supreme Court of Victoria made on 17 March 2017 and in their place order that:
(a) the appeal be allowed with costs; and
(b) the orders of Cameron J made on 10 August 2016 be set aside and in their place it be ordered that:
(i) the appeal be allowed with costs; and
(ii) in respect of the orders of Lansdowne AsJ made on 22 December 2015:
(A) Orders 1, 6, 7 and 8 be set aside;
(B) Order 2 be amended to delete the words "On payment of these amounts" and to add, after "within 14 days", the words "of the date of the final orders of the High Court of Australia in Matter No M114 of 2017"; and
(C) it be ordered that the defendants pay the plaintiff's costs in relation to the defendants' summons filed 17 July 2015 on a standard basis.
3. The respondents pay the appellant's costs.
On appeal from the Supreme Court of Victoria
Representation
J G Korman for the appellant (instructed by the appellant)
R M Garratt QC with M G McNamara for the respondents (instructed by CIE Legal)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Rozenblit v Vainer
Practice and procedure – Victoria – Stay of proceeding – Where appellant commenced proceeding in Supreme Court of Victoria – Where appellant made applications for leave to file and serve amended statement of claim – Where applications refused with costs taxed immediately – Where costs unpaid because appellant impecunious – Where appellant made further application – Where leave to amend statement of claim granted but proceeding stayed under Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 63.03(3) until interlocutory costs orders paid – Whether primary judge erred in making order to stay proceedings.
Words and phrases – "conduct which falls for condemnation", "costs taxed immediately", "impecunious", "interlocutory costs order", "only practical way to ensure justice between the parties", "stay of proceeding", "strong grounds".
KIEFEL CJ AND BELL J. The background facts and relevant statutory provisions are set out in the reasons of Gordon and Edelman JJ. We need only refer to some of them for the purposes of these reasons.
The appellant brought proceedings in the Supreme Court of Victoria in which he alleged that the first respondent had fraudulently and without his knowledge or consent transferred shares owned by him to the second respondent. He applied, unsuccessfully, on two occasions for leave to amend his statement of…
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
AGLC
Rozenblit v Vainer [2018] HCA 23
Case
[2018] HCA 23
Decision Date
CaseChat Overview and Summary
The appellant, Mr Rozenblit, commenced proceedings in the Supreme Court of Victoria. He sought leave to amend his statement of claim, but these applications were initially refused with costs taxed immediately. Due to his impecuniosity, Mr Rozenblit was unable to pay these costs. He subsequently made a further application for leave to amend, which was granted, but the proceeding was stayed under rule 63.03(3) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) until the interlocutory costs orders were paid. The appeal concerned whether the primary judge erred in making this order to stay proceedings.
The High Court was required to determine whether the order staying the proceeding until payment of interlocutory costs was a proper exercise of the court's discretion. Specifically, the court considered whether the circumstances justified such a stay, particularly in light of the appellant's impecuniosity and the nature of his claim. The court also had to assess whether the stay was the only practical way to ensure justice between the parties, as contemplated by the relevant rules.
The High Court allowed the appeal, finding that the grant of the stay had prevented Mr Rozenblit from pursuing a claim that was honestly made and that there were insufficient grounds for such an order. The court reasoned that the stay was not the only fair and practical way to ensure justice between the parties. Consequently, the High Court set aside the orders of the Court of Appeal and the orders of Cameron J, and amended the orders of Lansdowne AsJ to allow the appeal with costs, and to modify the condition for payment of costs.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside orders 2 and 3 of the Court of Appeal of the Supreme Court of Victoria made on 17 March 2017 and in their place order that:
(a) the appeal be allowed with costs; and
(b) the orders of Cameron J made on 10 August 2016 be set aside and in their place it be ordered that:
(i) the appeal be allowed with costs; and
(ii) in respect of the orders of Lansdowne AsJ made on 22 December 2015:
(A) Orders 1, 6, 7 and 8 be set aside;
(B) Order 2 be amended to delete the words "On payment of these amounts" and to add, after "within 14 days", the words "of the date of the final orders of the High Court of Australia in Matter No M114 of 2017"; and
(C) it be ordered that the defendants pay the plaintiff's costs in relation to the defendants' summons filed 17 July 2015 on a standard basis.
3. The respondents pay the appellant's costs.
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
KIEFEL CJ
BELL J
KEANE J
GORDON AND EDELMAN JJ
In this case, the grant of the stay has prevented Mr Rozenblit from pursuing a claim honestly made. There were insufficient grounds for such an order. The result was not the only fair and practical way to ensure justice between the parties. Conclusion and orders For the foregoing reasons, the appeal should be allowed. The orders of the Court should be:1. Appeal allowed.2.Set aside orders 2 and 3 of the Court of Appeal of the Supreme Court of Victoria made on 17 March 2017 and in their place order that:(a) the appeal be allowed with costs; and(b)the orders of Cameron J made on 10 August 2016 be set aside and in their place it be ordered that:(i)the appeal be allowed with costs; and(ii)in respect of the orders of Lansdowne AsJ made on 22 December 2015:(A)Orders 1, 6, 7 and 8 be set aside; (B)Order 2 be amended to delete the words "On payment of these amounts" and to add, after "within 14 days", the words "of the date of the final orders of the High Court of Australia in Matter No M114 of 2017"; and(C)it be ordered that the defendants pay the plaintiff's costs in relation to the defendants' summons filed 17 July 2015 on a standard basis.3. The respondents pay the appellant's costs.
Ratio Decidendi
Legal Principle Established
Established by:
KIEFEL CJ,
BELL J,
KEANE J,
GORDON AND EDELMAN JJ