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Velik v Steingold

Velik v Steingold

Case [2017] NSWDC 37 3 March 2017

Appeal

Costs

Interlocutory Orders

Civil Litigation & Procedure

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District Court

New South Wales

Medium Neutral Citation: Velik v Steingold [2017] NSWDC 37
Hearing dates: 2 December 2016, 15 February 2017
Date of orders: 03 March 2017
Decision date: 03 March 2017
Jurisdiction: Civil
Before: Dicker SC DCJ
Decision:
(1) The Amended Summons is dismissed.
(2) The plaintiffs are to pay the first defendant’s costs of the proceedings as agreed or assessed.
(3) Liberty to the parties to apply for a different costs order to that set out in (2) above.

Catchwords: Appeal – costs – whether the Costs Review Panel erred in relation to consideration of interlocutory costs orders made in the Supreme Court – whether costs order made by the Court of Appeal impliedly replaced interlocutory Supreme Court costs orders – whether certain items of costs claimed should have been allowed by the Review Panel – whether the plaintiff should have been ordered to pay the costs before the Review Panel
Legislation Cited: Civil Procedure Act 2005 (NSW)
Legal Profession Act 2004 (NSW)
Supreme Court Act 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Bunning v Cross (1978) 141 CLR 54
Crowley v Glissan (1905) 2 CLR 402
Frumar v The Owners of Strata Plan 36957 [2006] NSWCA 278
Hancock v Rinehart [2015] NSWSC 1640
Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32
Lawrence v Ramensky Lawyers [2006] NSWSC 175
Levy v Bergseng [2008] NSWSC 294
Oshlack v Richmond River Council (1998) 193 CLR 72
Ryan v Hansen [2000] NSWSC 354
Turner v Pride [1999] NSWSC 850
Velik v Steingold [2013] NSWCA 303
Vumbaca v Sultana [2012] NSWDC 237
Wende v Horwath (NSW) Pty Ltd [2014] NSWCA 170
Category: Principal judgment
Parties: Stephen Wayne Velik (First Plaintiff)
Laura Allison Velik (Second Plaintiff)
Noreen Steingold (First Defendant)
Gordon Albert Salier (Second Defendant)
John Lawrence Sharpe (Third Defendant)
Representation:
Counsel:
S Velik (Plaintiffs)
M Castle (First Defendant)
Solicitors:
S V Law (Plaintiffs)
Hicksons Lawyers (First Defendant)
Crown Solicitors Office (Second and Third Defendants)

File Number(s): 2016/219619

Judgment

This is an appeal against determinations as to costs made by a Costs Review Panel in a Certificate of Determination issued on 7 November 2016 with reasons provided dated 23 November 2016. The plaintiffs seek orders which include that the appeal be allowed and that the Certificate of Determination of the Costs Review Panel be set aside. Subsequent orders including as to costs are also sought.
The first defendant is the only active defendant in the appeal. The other two defendants were the members of the Costs Review Panel and filed submitting appearances.
The grounds of appeal are set out in the Amended Summons relied on by the plaintiffs dated 2 December 2016 and are in the following terms:

“1. The Review Panel erred in law in determining the Review Application without having given due consideration to the submissions of the Plaintiffs in paragraphs 1 to 10 inclusive of the Costs Respondents' Objections to Costs Applicant's Application for Assessment of Party Party Costs dated 9 December 2015, in…

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 Velik v Steingold

Details

AGLC: Velik v Steingold [2017] NSWDC 37
Case: [2017] NSWDC 37
Decision Date: 03 March 2017

CaseChat Overview and Summary

The case of Velik v Steingold involved the plaintiff, Velik, suing the defendants, Steingold and others, in the Supreme Court over matters concerning breaches of fiduciary duty, dishonest assistance, and conspiracy to defraud. The defendants appealed to the Court of Appeal, which subsequently referred the matter to the Costs Review Panel to review the costs orders made by the Supreme Court. The plaintiffs then sought to appeal the costs orders made by the Review Panel. The key issues before the court were whether the Review Panel correctly considered interlocutory costs orders made in the Supreme Court, whether the Court of Appeal's costs order impliedly replaced the Supreme Court's interlocutory costs orders, whether certain items of costs claimed should have been allowed by the Review Panel, and whether the plaintiffs should have been ordered to pay costs before the Review Panel.

The court found that the Review Panel had appropriately considered the interlocutory costs orders made in the Supreme Court and had not erred in its approach. It was determined that the Court of Appeal's costs order did not imply a replacement of the Supreme Court's interlocutory costs orders. The court further found that the Review Panel had correctly disallowed certain items of costs claimed by the defendants. Regarding the issue of costs before the Review Panel, the court held that the plaintiffs should not have been ordered to pay costs before the Review Panel, as it was not appropriate to do so in the circumstances of this case.

The court dismissed the amended summons and ordered that the plaintiffs pay the first defendant's costs of the proceedings as agreed or assessed, with liberty to the parties to apply for a different costs order. This decision underscores the importance of the proper consideration and application of interlocutory costs orders, the implications of costs orders made at different stages of litigation, and the appropriate allocation of costs in the context of costs reviews.

Orders

Orders of the court

(1) The Amended Summons is dismissed.

(2) The plaintiffs are to pay the first defendant’s costs of the proceedings as agreed or assessed.

(3) Liberty to the parties to apply for a different costs order to that set out in (2) above.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Actions

Citations

Velik v Steingold [2017] NSWDC 37

Cases Citing This Decision

No citing cases yet.

Cases Cited

Hancock v Rinehart (Lump Sum Costs) [2015] NSWSC 1640
Citation 1 (Para 64)

…The plaintiffs rely on Lawrence v Ramensky Lawyers , above, at [26] and Hancock v Rinehart [2015] NSWSC 1640 at [27] as standing inferentially for the proposition that a party cannot recover for legal costs concerning without prejudice correspondence relating to a Notice of Motion even in the case where an indemnity…
Wende v Horwath (NSW) Pty Ltd [2014] NSWCA 170
Citation 2 (Para 2)

…this was the proper result following an application of the principles set out in the decision of the Court of Appeal in Wende v Horwath (NSW) Pty Ltd [2014] NSWCA 170 at paragraphs [59]-[64], particularly at [64]. It was also submitted that in construing the order of the Court of Appeal, the meaning of Order 6 as m…
Velik v Steingold [2013] NSWCA 303
Citation 3 (Para 2)

…The written submissions on behalf of the parties in Court of Appeal proceedings 2012/305131 which resulted in the decision of Velik v Steingold [2013] NSWCA 303, which became Exhibit 1 in the Appeal;…
Vumbaca v Sultana [2012] NSWDC 237
Citation 4 (Para 43)

…ns were not evidence supporting the Review Panel’s decision and rely on Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32 and Vumbaca v Sultana [2012] NSWDC 237. The first defendant submits that the Review Panel was not bound by the rules of evidence. In my view, the reasons of the Court of Appeal were material…
Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32
Citation 5 (Para 43)

…ubmit that the Court of Appeal reasons were not evidence supporting the Review Panel’s decision and rely on Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32 and Vumbaca v Sultana [2012] NSWDC 237. The first defendant submits that the Review Panel was not bound by the rules of evidence. In my view, the reaso…
Levy v Bergseng [2008] NSWSC 294
Citation 6 (Para 5)

…reasoning as to the Court of Appeal order. The Review Panel was required to disclose the process by which it arrived at its decision: Levy v Bergseng [2008] NSWSC 294 at [81];…
Frumar v The Owners of Strata Plan 36957 [2006] NSWCA 278
Citation 7 (Para 6)

…position to understand why the decision was made sufficiently to allow them to exercise the right of appeal: Frumar v The Owners of Strata Plan 36957 [2006] NSWCA 278.…
Lawrence v Ramensky Lawyers [2006] NSWSC 175
Citation 8 (Para 62)

…mits a party to claim costs of and incidental to an application commenced by way of Notice of Motion. See paragraph 26 of Lawrence v Ramensky Lawyers [2006] NSWSC 175 which dealt with a costs order made on the usual basis. The fact such costs could be claimed would be even clearer in the case of an order for indemn…
Ryan v Hansen t/as Hansens Solicitors [2000] NSWSC 354
Citation 9 (Para 3)

…These statutory requirements fulfil the obligation to accord natural justice: Ryan v Hansen [2000] NSWSC 354 at [30];…
Turner v Pride [1999] NSWSC 850
Citation 10 (Para 2)

…These requirements were a statutory obligation on the Review Panel: Turner v Pride [1999] NSWSC 850 at [36]-[38];…
Oshlack v Richmond River Council [1998] HCA 11
Citation 11

…1640 Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32 Lawrence v Ramensky Lawyers [2006] NSWSC 175 Levy v Bergseng [2008] NSWSC 294 Oshlack v Richmond River Council (1998) 193 CLR 72 Ryan v Hansen [2000] NSWSC 354 Turner v Pride [1999] NSWSC 850 Velik v Steingold [2013] NSWCA 303 Vumbaca v Sultana [2012] NSWDC 237 Wende v Horwath (…
Bunning v Cross [1978] HCA 22
Citation 12 (Para 28)

…right to bring the appeal in relation to the final judgment. They rely on cases which include Crowley v Glissan (1905) 2 CLR 402 and Bunning v Cross (1978) 141 CLR 54. Even if that is correct, the terms of the Notice of Appeal are a strong guide as to what was appealed to the Court of Appeal. There is no express re…
Crowley v Glissan (No 2) [1905] HCA 31
Citation 13

…ssion Act 2004 (NSW) Supreme Court Act 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Bunning v Cross (1978) 141 CLR 54 Crowley v Glissan (1905) 2 CLR 402 Frumar v The Owners of Strata Plan 36957 [2006] NSWCA 278 Hancock v Rinehart [2015] NSWSC 1640 Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32 La…
Crowley v Glissan [1905] HCA 13
Citation 14 (Para 28)

…required where the plaintiffs had the right to bring the appeal in relation to the final judgment. They rely on cases which include Crowley v Glissan (1905) 2 CLR 402 and Bunning v Cross (1978) 141 CLR 54. Even if that is correct, the terms of the Notice of Appeal are a strong guide as to what was appealed to the C…

Legislation Cited

Suitors’ Fund Act 1951 (NSW)
2 mentions
Civil Procedure Act 2005 (NSW)
1 mention (from Para 65)
Legal Profession Act 2004 (Vic)
1 mention (from Para 4)
Supreme Court Act 1970 (NSW)
1 mention (from Para 28)
Uniform Civil Procedure Rules 2005 (NSW)
1 mention

Medium Neutral Citation:	Velik v Steingold [2017] NSWDC 37
Hearing dates:	2 December 2016, 15 February 2017
Date of orders:	03 March 2017
Decision date:	03 March 2017
Jurisdiction:	Civil
Before:	Dicker SC DCJ
Decision:	(1) The Amended Summons is dismissed. (2) The plaintiffs are to pay the first defendant’s costs of the proceedings as agreed or assessed. (3) Liberty to the parties to apply for a different costs order to that set out in (2) above.
Catchwords:	Appeal – costs – whether the Costs Review Panel erred in relation to consideration of interlocutory costs orders made in the Supreme Court – whether costs order made by the Court of Appeal impliedly replaced interlocutory Supreme Court costs orders – whether certain items of costs claimed should have been allowed by the Review Panel – whether the plaintiff should have been ordered to pay the costs before the Review Panel
Legislation Cited:	Civil Procedure Act 2005 (NSW) Legal Profession Act 2004 (NSW) Supreme Court Act 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Bunning v Cross (1978) 141 CLR 54 Crowley v Glissan (1905) 2 CLR 402 Frumar v The Owners of Strata Plan 36957 [2006] NSWCA 278 Hancock v Rinehart [2015] NSWSC 1640 Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32 Lawrence v Ramensky Lawyers [2006] NSWSC 175 Levy v Bergseng [2008] NSWSC 294 Oshlack v Richmond River Council (1998) 193 CLR 72 Ryan v Hansen [2000] NSWSC 354 Turner v Pride [1999] NSWSC 850 Velik v Steingold [2013] NSWCA 303 Vumbaca v Sultana [2012] NSWDC 237 Wende v Horwath (NSW) Pty Ltd [2014] NSWCA 170
Category:	Principal judgment
Parties:	Stephen Wayne Velik (First Plaintiff) Laura Allison Velik (Second Plaintiff) Noreen Steingold (First Defendant) Gordon Albert Salier (Second Defendant) John Lawrence Sharpe (Third Defendant)
Representation:	Counsel: S Velik (Plaintiffs) M Castle (First Defendant) Solicitors: S V Law (Plaintiffs) Hicksons Lawyers (First Defendant) Crown Solicitors Office (Second and Third Defendants)
File Number(s):	2016/219619