Stuart v Mordialloc Sporting Club Inc (No 2) - [2020] VSC 744

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PROPERTY LIST

S ECI 2018 01124

RAYMOND JOHN STUART	Plaintiff
v
MORDIALLOC SPORTING CLUB INC (ARN A0027737R) & ORS (ACCORDING TO THE SCHEDULE)	Defendants

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JUDGE:	Kennedy J
WHERE HELD:	Melbourne
DATE OF HEARING:	Determined on the papers; submissions received on 19 October 2020, 27 October 2020, and 9 November 2020.
DATE OF RULING:	12 November 2020
CASE MAY BE CITED AS:	Stuart v Mordialloc Sporting Club Inc (No 2)
MEDIUM NEUTRAL CITATION:	[2020] VSC 744

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PRACTICE AND PROCEDURE - Costs – Whether costs should be taxed immediately – Where there is a discrete issue - Where also prospects of considerable delay – Costs to be taxed immediately - Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 63.20.1.

PRACTICE AND PROCEDURE – Whether appeal costs certificate available in relation to appeal from judicial registrar – Certificate granted - Appeal Costs Act 1998 (Vic) ss 3, 4.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr W Stark	Mahons Lawyers
For the Sixth Defendant	Mr S Horgan QC with Mr N Frenkel	HWL Ebsworth

HER HONOUR:

On 8 October 2020 I determined that an appeal should be allowed against certain orders made by Matthews JR on 13 March 2020. In particular, in reasons delivered that day, I determined that the plaintiff should provide security for Mr Said’s costs up to, and including mediation (the Reasons).[1]
[1]Stuart v Mordialloc Sporting Club Inc [2020] VSC 658 (‘the Reasons’).

Subject to providing the parties with an opportunity to address the precise form of order, the Reasons proposed a number of orders at paragraph 137 as follows:

1 The appeal is granted.
2 Orders 2 - 4 of the orders made by Judicial Registrar Matthews on 13 March 2020 are set aside.
3 The plaintiff provide security of $227,678.27 for the sixth defendant’s costs up to, and including mediation, by payment of that amount into Court, or by provision of such other form of security as is acceptable to the Associate Judge who is the Senior Master.
4If the plaintiff does not comply with order 3 within 14 days, the proceeding be stayed.
5 The plaintiff pay the sixth defendant’s costs of and incidental to the sixth defendant’s application for security for costs made by summons filed 3 September 2019, and of this appeal, on a standard basis.

The parties were also invited to give consideration to whether any certificate should be granted under the Appeal Costs Act 1998 (Vic) (at paragraph 138 of the Reasons).

Following exchange of written submissions, there was general agreement with the proposed form of order save for the following issues:

(a) whether costs the subject of proposed order 5 should be taxed immediately under r 63.20.1 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (the Rules); and

(b) whether costs orders should be made in relation to the service of a notice to produce.

It was also necessary…

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: [2020] VSC 744
Decision Date: 12 November 2020

CaseChat Overview and Summary

Stuart v Mordialloc Sporting Club Inc (No 2) involved a dispute over the taxation of costs between the plaintiff and the defendant, which was heard in the Supreme Court of Victoria. The plaintiff sought immediate taxation of costs, arguing that there was a discrete issue involved and that a delay in taxation would cause considerable hardship. The defendant, on the other hand, opposed the immediate taxation of costs, suggesting that the issue was not as straightforward as the plaintiff claimed and that a delay would not necessarily cause significant prejudice.

The central legal issue for the court was whether the costs should be taxed immediately, as requested by the plaintiff. The court considered the relevant provisions of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) and the implications of a potential delay in the taxation process. The court also had to determine whether an appeal costs certificate could be granted in relation to an appeal from a judicial registrar, as per the provisions of the Appeal Costs Act 1998 (Vic).

In its judgment, the court found that the plaintiff's request for immediate taxation of costs was justified. The court emphasised the importance of promptly resolving issues related to cost taxation, particularly when there is a discrete issue at hand. The court also noted the potential for considerable delay if the taxation was not addressed immediately. Consequently, the court ordered that the costs be taxed without delay, in accordance with the Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 63.20.1. Additionally, the court granted the plaintiff's request for an appeal costs certificate in relation to the appeal from the judicial registrar, pursuant to the Appeal Costs Act 1998 (Vic) ss 3, 4. This decision underscored the importance of timely resolution of cost-related issues in litigation proceedings.

Orders