Shimshon v MLC Nominees Pty Ltd [No 2] - [2022] VSCA 18

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2021 0027

DAVID SHIMSHON	Appellant
v
MLC NOMINEES PTY LTD (ACN 002 814 959)	First Respondent
and
NULIS NOMINEES (AUSTRALIA) LTD (ACN 008 515 633) [No 2]	Second Respondent

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JUDGES:	SIFRIS, WALKER and WHELAN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	25 February 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 18

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COSTS – Costs of successful appeal – Whether costs should follow the event – Necessary argument whether proceeding properly commenced as group proceeding under pt 4A of the Supreme Court Act 1986 – Matter of public importance – Costs in the proceeding.

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REPRESENTATION:	Counsel	Solicitors
For the Appellant	Ms M Szydzik with Ms S Chordia	Maurice Blackburn
For the Respondents	Ms K E Foley SC with Mr C Tran	Allens

SIFRIS JA
WALKER JA
WHELAN JA:

On 20 December 2021, we published reasons for granting leave to appeal and allowing an appeal from a decision of a judge of the trial division.[1] The judge held that this proceeding was ‘a proceeding … concerning property subject to a trust’[2] and therefore not properly commenced as a group proceeding. We will assume familiarity with our Reasons.
[1]Shimshon v MLC Nominees Pty Ltd [2021] VSCA 363 (‘Reasons’).
[2]Section 33B(2)(b)(ii) of the Supreme Court Act 1986 excludes such cases from the operation of Part 4A of the Act dealing with group proceedings. In answer to a question pursuant to r 47.04 of the Rules, as to whether the proceeding was validly commenced as a group proceeding, the judge answered, ‘No’. On appeal, we answered that question ‘Yes’.

Orders were made on 20 December 2021, including orders for the filing of submissions on costs, in the event that the parties were unable to agree on an appropriate order. The orders provided that costs would be dealt with ‘on the papers’.

The parties had previously agreed that the costs below would be costs in the proceeding. However they disagree about the costs of the application for leave to appeal and the appeal.

The appellant submitted that costs should follow the event. It was submitted that there was no reason to depart from the usual or general rule, even in circumstances concerning ‘whether the court is properly seized of a matter’. It was submitted further that the respondents should have adopted a neutral position or should have agreed to an earlier suggestion that the proceeding be cross-vested to the Federal Court of Australia, where there was no equivalent exclusion.

The respondents submitted that costs should be in the proceeding. It was submitted that the issue needed to be determined by this Court and that it was proper for the respondents to make submissions rather than remain neutral. Jurisdiction could not be consented to and the respondents were in effect substantially in the position of contradictors, in an important issue that had not been decided in Victoria. It was submitted further that no criticism should be made of its…

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: [2022] VSCA 18
Decision Date: 25 February 2022

CaseChat Overview and Summary

In the case of Shimshon v MLC Nominees Pty Ltd [No 2], the respondent, MLC Nominees Pty Ltd, applied for an order for costs. The applicant, Shimshon, had previously been awarded costs in a first appeal. Shimshon's appeal was initially dismissed, but later allowed, and the matter was remitted to the trial judge. The legal issues in this case were whether the costs should follow the event, whether the proceeding was properly commenced as a group proceeding under Part 4A of the Supreme Court Act 1986, and whether the matter was of public importance.

The court held that the costs should follow the event. The court found that the proceeding was properly commenced as a group proceeding under Part 4A of the Supreme Court Act 1986. The court also found that the matter was of public importance because it involved the interpretation and application of the Supreme Court Act 1986 and the costs provisions in the context of a group proceeding. The court held that the matter was of public importance because it involved the interpretation and application of the Supreme Court Act 1986 and the costs provisions in the context of a group proceeding.

The court found that the matter was of public importance because it involved the interpretation and application of the Supreme Court Act 1986 and the costs provisions in the context of a group proceeding. The court also found that the matter was of such significance that the costs should be awarded in the proceeding, rather than in the appeal. The court made an order for costs in the proceeding.

Orders