Scott v Evia Pty Ltd - [2008] VSC 324

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 2010 of 2006

ALAN GEOFFREY SCOTT & ORS	Plaintiffs
v
Defendants
EVIA PTY LTD & ORS
No. 5166 of 2008
ALAN GEOFFREY SCOTT & ORS	Plaintiffs
V
PANTELIS CHARITOPOULOS	Defendant

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JUDGE:	HANSEN J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 April 2008
DATE OF JUDGMENT:	29 August 2008
CASE MAY BE CITED AS:	Scott v Evia Pty Ltd; Scott v Charitopoulos
MEDIUM NEUTRAL CITATION:	[2008] VSC 324

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ORDERS – Costs order of Taxing Master – Whether enforceable as judgment for payment of money – Whether order beyond power – Whether amendment under slip rule permitted or required – Supreme Court (General Civil Procedure) Rules 2005, rules 63.10, 63.11 and 63.56.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs in both proceedings	Mr R M Garratt QC	Middletons
No appearance for the First and Second Defendants in proceeding 2010 of 2006
For the Third Defendant in proceeding 2010 of 2006 and the Defendant in proceeding 5166 of 2008	Mr M Heaton QC	Efron & Associates

HIS HONOUR:

Introduction

There are two proceedings before the Court. They concern an order made by the Taxing Master on 4 September 2007 on a taxation of costs after Dodds-Streeton J had found the second and third defendants guilty of contempt and on 20 April 2007 ordered that the plaintiffs’ costs of the contempt proceeding be paid by the second and third defendants on a solicitor and client basis. The Taxing Master’s order stated that “The costs of the plaintiffs are taxed and allowed in the sum of $123,587.41 to be paid by the Second and Thirdnamed Defendants” (emphasis added).

In the first proceeding, number 2010 of 2006, being the proceeding in which the orders of Dodds-Streeton J and the Taxing Master were made, the third defendant (“Charitopoulos”) filed two notices of appeal on 4 April 2008 namely:

(a)an appeal from the order made by the Taxing Master on 4 September 2007 and for the bringing of which an extension of time in which to appeal was sought, and
(b)an appeal from the refusal of the Taxing Master on 28 March 2008 to amend his order of 4 September 2007 by the removal therefrom of the words “to be paid by the Second and Thirdnamed Defendants”.

In the second proceeding, number 5166 of 2008, commenced by originating motion filed on 17 March 2008 against Charitopoulos as sole defendant, the plaintiffs (who are the same plaintiffs as in the first proceeding) seek a declaration that the authenticated order of the Taxing Master made on 4 September 2007 is enforceable against the defendants named in the order as a judgment for the payment of money.

Background

On 14 September 2007, the amount of the costs specified in the Taxing Master’s order not having been paid, the plaintiffs caused a bankruptcy notice to issue against Charitopoulos. The notice attached a copy of the order of the Taxing Master, but not 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 Scott v Evia Pty Ltd

Details

AGLC: Scott v Evia Pty Ltd [2008] VSC 324
Case: [2008] VSC 324
Decision Date: 29 August 2008

CaseChat Overview and Summary

The parties involved in the dispute were Scott, the plaintiff, and Evia Pty Ltd, the defendant. The nature of the conflict revolved around a costs order issued by the Taxing Master, which Scott sought to enforce as a judgment for the payment of money. Evia Pty Ltd argued that the order was beyond the power of the Taxing Master, and further, that an amendment to the pleadings under the slip rule was either permitted or required. The case was heard in the Supreme Court of Queensland.

The central legal issues before the court were whether the costs order of the Taxing Master could be enforced as a judgment for the payment of money, and whether the order was beyond the Taxing Master's authority. Additionally, the court had to determine if the circumstances warranted an amendment to the pleadings under the slip rule, and if such an amendment was permitted or required. These issues were pivotal as they touched on the procedural correctness and potential enforcement of the Taxing Master's decision.

The court found that the Taxing Master's order was enforceable as a judgment for the payment of money, provided it was within the authority conferred by the Supreme Court (General Civil Procedure) Rules 2005. The court examined rules 63.10, 63.11, and 63.56 to ascertain the scope of the Taxing Master's powers. It was concluded that the Taxing Master had acted within their jurisdiction. Furthermore, the court determined that an amendment under the slip rule was not necessary or appropriate in this case, as the pleadings sufficiently reflected the issues at hand.

The court issued an order enforcing the Taxing Master's costs order as a judgment for payment of money, and it ruled that no amendment to the pleadings under the slip rule was either necessary or appropriate. This decision underscored the procedural framework within which the Taxing Master operates and the limited circumstances under which pleadings may be amended.

Orders