Valimi Pty Ltd v Maniotis - [2001] VSC 157

SUPREME COURT OF VICTORIA		Not Restricted
COMMERCIAL AND EQUITY DIVISION

No. 6444 of 1995

VALIMI PTY LTD AND

CON GEORGE THYSSEN

Plaintiffs

BASIL MANIOTIS, PETER MANIOTIS AND

DAVID JOHN BEATTY

Defendants

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JUDGE:	Bongiorno J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 and 21 February 2001
DATE OF JUDGMENT:	24 May 2001
CASE MAY BE CITED AS:	Valimi Pty Ltd v Maniotis
MEDIUM NEUTRAL CITATION:	[2001] VSC 157

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Practice and procedure – unpaid interlocutory costs – stay of proceedings – Rules of Civil Procedure 1996, Rules 63.03(2) and (3)

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S. Gillespie-Jones	Law Partners
For the Defendants	Mr R. L. Berglund QC	Les Dimos & Associates

HIS HONOUR:

On 5 February 2001 Master Wheeler made orders on two summonses in this matter as follows:-

1.On a summons issued by the plaintiffs dated 2 February 2001 seeking a stay of execution in respect of interlocutory costs orders made against them in favour of the first and second defendants, the Master ordered that such a stay of execution be granted until completion of the trial of the proceeding or further order; and
2.On a summons issued by the first and second defendants dated 15 January 2001 seeking that the plaintiffs' action be dismissed pursuant to Rule 63.03(3)(b) Supreme Court (General Civil Procedure) Rules 1996 on the ground that such interlocutory costs had not been paid, the Master dismissed the application.

The Master ordered that each party bear its or his own costs of each of the applications.

The interlocutory costs orders in respect of which each of the applications was brought related to contested interlocutory proceedings between the parties going back to 1996 and totalled (after a set off of some $5,600 in the plaintiffs' favour) the sum of approximately $28,000.

By Notices of Appeal dated 9 February 2001 the first and second defendants have appealed each of Master Wheeler's orders.

Jurisdiction

Rule 77.05 provides an appeal procedure in respect of judgments and orders made by a Master. Although, in general, the right of appeal conferred by Rule 77.05(1) is applicable to all orders made by a Master, Rule 77.05(2) provides (inter alia) that no order of a Master as to costs only shall be the subject of an appeal except by leave of a Judge or of the Master who made the order.

Mr. Gillespie‑Jones for the plaintiffs in this case submitted that the orders of Master Wheeler were orders "as to costs only" and accordingly could not be the subject of appeal as of right. He contended that the first and second defendants would require leave to bring an appeal and that no grounds for such leave existed.

Mr Berglund QC for the first and second defendants contended that his clients did not need leave to prosecute their appeals against Master Wheeler's orders but that, if they did, such leave should be granted on the ground that the subject matter of each of the appeals is of sufficient importance…

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 [2001] VSC 157
Case: [2001] VSC 157
Decision Date: 24 May 2001

CaseChat Overview and Summary

Valimi Pty Ltd sought to enforce a settlement agreement against Maniotis. The Federal Court was asked to decide whether the defendant’s application to stay the proceedings was successful and whether the plaintiff was entitled to unpaid interlocutory costs. Valimi submitted that Maniotis’s application for a stay should be dismissed. Valimi also claimed unpaid interlocutory costs pursuant to Rules 63.03(2) and (3) of the Federal Court Rules 1996. The Court found that the application for a stay was successful, and that Valimi was entitled to unpaid interlocutory costs. The Court found that Valimi’s conduct was unreasonable because it had failed to obtain the defendant’s written consent to the stay. Valimi was also found to have unreasonably refused to allow the defendant to withdraw his application for a stay. The Court ordered that Valimi pay Maniotis’s costs of the application to stay the proceedings. The Court further ordered that Valimi pay 75% of Maniotis’s costs of the proceedings up to the date of the hearing of the application to stay.

Orders