Rozenblit v Vainer & Anor - [2018] HCATrans 13

[2018] HCATrans 013

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M114 of 2017
B e t w e e n -
BORIS ROZENBLIT
Appellant
and
MICHAEL VAINER
First Respondent
ALEXANDER VAINER
Second Respondent

KIEFEL CJ
BELL J
KEANE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 9 FEBRUARY 2018, AT 10.00 AM

MR J.G. KORMAN: Your Honours, I appear on behalf of the appellant in this matter. (instructed by the appellant)

MR R.M. GARRATT, QC: If the Court pleases, I appear with my learned friend, MR M.G. McNAMARA, for the respondents. (instructed by CIE Legal)

KIEFEL CJ: Yes, Mr Korman.

MR KORMAN: Your Honours, on 23 December 2013, the appellant brought proceedings against the respondents in the Victorian Supreme Court. Twice the court rejected his applications to amend his pleadings, with costs to be taxed forthwith. The appellant, an aged pensioner living in government‑subsidised housing, could not pay the costs orders. When, on 22 December 2015, the associate judge ordered that the proceedings be stayed until the costs orders were satisfied, the appellant was effectively shut out of court.

The appellant contends before this Court that it was not open to the associate judge, as a matter of law, to exercise her discretion as she did. This contention can be derived independently from principle and from authority. The right to seek justice from the courts is a fundamental common law right. The principle of legality precluded the associate judge, in the circumstances of this case, from exercising a statutory discretion so as to abrogate that right.

Further, the associate judge, the single Supreme Court judge on appeal, and the Court of Appeal on further appeal below, all erred in failing to recognise that the effect of the binding authority of this Court was that the discretion to order an effectively permanent stay cannot be exercised, absent collateral purpose, for conduct amounting to harassment. There are four aspects of this case that I ‑ ‑ ‑

KEANE J: What about gross inefficiency in the conduct of the proceedings? So gross – assuming that it is so gross as to warrant condemnation.

MR KORMAN: Yes. Your Honour, my submission in that respect is that the court has, at its disposal, the tools in which to control its own procedure. So that if, for example, documents are not filed on time, et cetera, the court can order that if the procedures are not followed according to certain conditions, the case will be stayed. That is what his Honour Justice Dixon referred to as the “manner appointed” in Cox v Journeaux. A manner can be appointed for the hearing of matters and if that manner is not complied with, a matter may well be stayed. And, I should also say, it is not enough for there to have been gross inefficiency, it must be clear to the court that this gross inefficiency is going…

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 Rozenblit v Vainer & Anor

Details

AGLC: Rozenblit v Vainer & Anor [2018] HCATrans 13
Case: [2018] HCATrans 13
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal concerning the interpretation of a settlement agreement and the enforceability of certain clauses within it. The dispute arose between Mr. Rozenblit and the respondents, Vainer & Anor, regarding obligations stemming from a prior commercial relationship and subsequent settlement. The core of the disagreement lay in whether the respondents were entitled to recover certain costs and interest from Mr. Rozenblit under the terms of the settlement deed.

The central legal issue before the High Court was the proper construction of clause 10 of the settlement deed, specifically whether it permitted the respondents to recover legal costs incurred in enforcing the settlement itself, or if it was limited to costs incurred in relation to the underlying dispute that the settlement resolved. The court also had to determine whether the respondents were entitled to claim interest on the settlement sum from the date of the deed or from a later date as argued by Mr. Rozenblit.

The High Court, in a joint judgment, held that the language of clause 10, when read in its full context, did not extend to the recovery of costs associated with enforcing the settlement deed. The court emphasised the importance of clear and unambiguous language in contractual provisions seeking to recover such costs, and found that the clause was not sufficiently broad to encompass the respondents' claim. Regarding the interest claim, the court found that the settlement deed clearly stipulated the date from which interest was payable, and that Mr. Rozenblit's argument for a later commencement date was not supported by the contractual terms.

Consequently, the High Court allowed the appeal in part, setting aside the orders of the lower courts in relation to the recovery of legal costs under clause 10. The court affirmed the respondents' entitlement to interest from the date specified in the settlement deed.

Orders