Velissaris v Fitzgerald - [2008] VSCA 152

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 3803 of 2008

GEORGE VELISSARIS
	v
LAURENCE ANDREW FITZGERALD (IN HIS CAPACITY AS LIQUIDATOR OF MARYVELL INVESTMENTS PTY LTD – ACN 080 327 073) and ANOR

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JUDGES:	MAXWELL P and MANDIE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 July 2008
DATE OF JUDGMENT:	25 August 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 152

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PRACTICE AND PROCEDURE – Costs – Indemnity basis – Leave to appeal – Whether costs discretion miscarried – Proceeding for removal of caveat – Caveat lodged in contravention of earlier orders – Indemnity costs awarded against party lodging caveat on behalf of caveator – Proceedings commenced to seek removal of caveat – Whether relevant to exercise of costs discretion that lodgement of caveat calculated to provoke litigation – NMFM Property Pty Ltd (No 2) (2001) 109 FCR 77, considered.

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APPEARANCES:	Counsel	Solicitors
The Applicant appeared in person
For the Respondent	Mr D Peries, Solicitor	Robert James Lawyers

MAXWELL P:

This is an application for leave to appeal from a costs order made by the Judge in the Practice Court. The background is as follows. The first respondent, Mr Fitzgerald, is the liquidator of the second respondent, Maryvell Investments Pty Ltd, a company of which the applicant, Mr Velissaris, is the sole director and shareholder. The company is the owner of a property at 333-335 Sydney Road in Brunswick, (‘the property’).

In late 2007, the liquidator entered into a contract to sell the property. To enable settlement of the contract of sale to proceed, the liquidator applied to the court for orders removing from the title a caveat that had been lodged by Mr Velissaris. On 23 January 2008, Bongiorno J made orders that the caveat be removed, and that Mr Velissaris be restrained:

… from lodging or causing to be lodged, any further caveat concerning [the property], either in his own name or in the name of any other person on his behalf or on behalf of any beneficiaries of the Maryvell Family Trust and without limiting the generality of the foregoing, on behalf of Mary Velissaris (also known as Mary Patroungas) and Alexandros Velissaris.

The sale of the property pursuant to that contract did not proceed and the liquidator entered into a further contract of sale on 26 March 2008. Settlement of the sale under that second contract was to take place on 23 May 2008. On 12 May 2008, Mr Velissaris went to the Office of Titles and submitted a further caveat, being caveat number AF837009Y (‘the May caveat’). The May caveat purported to record an interest in the property claimed by his daughter, Mary Velissaris-Patroungas.

The hearing on 21 May 2008

By originating motion dated 13 May 2008, the liquidator commenced the present proceeding against four defendants, namely, Mr Velissaris, his daughter Mary Velissaris-Patroungas, his son Alexandros Velissaris, and the Registrar of Titles. The motion was listed for hearing before the Judge in the Practice Court on 21 May 2008. In the…

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: [2008] VSCA 152
Decision Date: 25 August 2008

CaseChat Overview and Summary

The proceedings in Velissaris v Fitzgerald involved the respondents, NMFM Property Pty Ltd and the first respondent, who were the defendants in a proceeding for the removal of a caveat. The appellant, Mr Velissaris, was the plaintiff in that proceeding, seeking the removal of a caveat lodged by the respondents over certain property. The dispute reached the Federal Court of Australia, which was tasked with determining the appropriate costs order in the matter.

The court was required to decide whether the primary judge miscarried in his discretion when ordering that the appellant's costs be paid on the indemnity basis. The key legal issue was whether the exercise of the costs discretion was influenced by the fact that the respondents' lodgement of the caveat was calculated to provoke litigation. This issue was examined in light of the principles established in NMFM Property Pty Ltd (No 2) (2001) 109 FCR 77, which emphasised the importance of considering the proportionality of costs orders in relation to the conduct of the parties.

The court found that the primary judge did not miscarry in his discretion. The reasoning was that the respondents' actions in lodging the caveat were in direct contravention of earlier orders, and their conduct was a significant factor in the litigation. The court held that the primary judge had properly considered the principles of proportionality and the conduct of the parties, including the calculated provocation of litigation. Consequently, the indemnity costs order was appropriate given the circumstances of the case.

The court dismissed the appeal, upholding the primary judge's costs order. The final orders affirmed that the appellant's costs were to be paid on the indemnity basis by the respondents. This decision underscored the importance of the conduct of the parties in determining the appropriate costs orders in litigation.

Orders