Valimi Pty Ltd v Maniotis - [2003] VSC 357

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION

No. 6664 of 1995

VALIMI PTY LTD and anor	Plaintiff
v
BASIL MANIOTIS and ors	Defendants

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JUDGE:	Nettle J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 August 2003
DATE OF JUDGMENT:	26 August 2003
CASE MAY BE CITED AS:	Valimi Pty Ltd v Maniotis
MEDIUM NEUTRAL CITATION:	[2003] VSC 357

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S. Gillespie-Jones	AJH Solicitors
For the Third Defendant	Mr G. Fitzgerald	Blake Dawson Waldron Lawyers

HIS HONOUR:

By summons dated 11 August 2003 the plaintiff seeks orders that the Taxing Master be directed to tax the first plaintiff's costs in accordance with the bill of costs referred to in the first plaintiff's summons for taxation filed in this proceeding on 6 March 2003, on the Supreme Court scale and that the thirdnamed defendant pay the costs of the application.

The application is supported by affidavit sworn by Jean Volovich on 5 August 2003 in which the facts are deposed to.

Briefly the proceeding arises from a dispute between the partners in a wholesale nursery business and the thirdnamed defendant who was appointed by this Court as receiver and manager of the business upon the application of the first and secondnamed defendants.

The plaintiffs commenced this proceeding on or about 21 July 1995 alleging causes of action arising from the conduct of the first and secondnamed defendants before and during the course of the receivership and of the thirdnamed defendant during the course of the receivership (which I note had come to an end before the proceeding began).

The plaintiffs' claims as against the first and secondnamed defendants include claims for breach of fiduciary duty as former partners, conspiracy to impoverish the firstnamed plaintiff and damages pursuant to an undertaking given to the court during the proceedings as a condition of the appointment of the thirdnamed defendant as receiver.

The plaintiffs' claims against the thirdnamed defendant include claims for breach of fiduciary duty as receiver and manager, and negligence in the conduct of the receivership, as well as for an account.

On 17 December 2003 the first and secondnamed defendants filed a notice of claim as against the thirdnamed defendant alleging that if they were liable to the plaintiff, which they denied, the thirdnamed defendant was in turn liable to indemnify them in respect of any damage which they might thereby suffer.

On about 19 June 2001 Bongiorno J ordered a stay of the proceeding as against the first and secondnamed defendants until payment of interlocutory costs orders which were then outstanding. The stay was lifted when the outstanding costs were paid together with interest on 5 March 2003 and 1 April 2003.

On 31 August 2001 the Listing Master set the matter down for a 12 day trial as between the firstnamed plaintiff and the thirdnamed defendant to commence on 27 May 2002. Thereafter extensive preparations were undertaken, including preparation by the firstnamed plaintiff of a…

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 Valimi Pty Ltd v Maniotis

Details

AGLC: Valimi Pty Ltd v Maniotis [2003] VSC 357
Case: [2003] VSC 357
Decision Date: 26 August 2003

CaseChat Overview and Summary

Valimi Pty Ltd v Maniotis involved a dispute between the partners in a wholesale nursery business and a receiver appointed by the court. The plaintiffs sought orders for the taxation of costs on the Supreme Court scale after accepting a compromise offer of $100,000 from the third defendant. The third defendant argued that the costs should be taxed according to the County Court scale due to the amount of the compromise offer being less than half the jurisdictional limit of the County Court. The legal issue was whether Rules 63.24 or 63.25 applied to limit the plaintiff's costs to the County Court scale.

Nettle J held that neither Rule 63.24 nor Rule 63.25 applied. The court found that the proceeding was not one substantially for debt or damages because it included claims for equitable relief and declarations of trust. The court also found that even if the proceeding were not one for debt or damages, the value of the property and amount in dispute were substantially in excess of the jurisdictional limit of the County Court. The court noted that it would have been inappropriate to pursue the equitable claims in the County Court. Therefore, the Taxing Master should tax the plaintiff's costs on the Supreme Court scale.

The court made an order that the Taxing Master should tax the first plaintiff's costs pursuant to the bill of costs on the Supreme Court scale, and that the third defendant pay the costs of the application.

Orders