JUDGE:	ROBSON J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 and 26 June 2008
DATE OF JUDGMENT:	25 August 2008
CASE MAY BE CITED AS:	Vink v Tuckwell (No 3)
MEDIUM NEUTRAL CITATION:	[2008] VSC 316

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COSTS – Indemnity costs – Litigant in person – Unfounded allegations of misconduct – Plaintiff not seeking any redress – Grounds existing for departing from usual order that costs be taxed on a party/party basis – Grounds existing for departing from Court’s normal reluctance to order indemnity costs against litigant in person – Order for indemnity costs – rr 63.28 General Rules of Procedure in Civil Proceedings 1986 Ch 1.

CORPORATIONS – Creditors’ voluntary liquidation – Application for an inquiry into the conduct of a liquidation under s 536(1)(b) of the Corporations Act 2001 – Complaint dismissed – Order as to costs.

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Bhagat v Global Custodians Ltd [2002] FCA 223
Bhagat v Royal and Sun Alliance Life Assurance Australia Ltd [2000] NSWSC 159
Christie v Christie (1873) LR8 Ch App 499
Degmam Pty Ltd (in liq) v Wright (No 2) [1983] 2 NSWLR 354
Forester v Read (1870) LR6ChApp 40
GT Corporation Pty Ltd v Amare Safety Pty Ltd (No 3) [2008] VSC 296
Hobartville Stud v Union Insurance Co (1991) 25 NSWLR 358
McFadzean v Construction, Forestry, Mining & Energy Union [2007] VSCA 289
Nolan v Nolan [2004[ VSCA 134
Northbourne Developments Pty Ltd v Reiby Chambers Pty Ltd (1989) 19 NSWLR 434
Ogawa v The University of Melbourne (No.2) [2004] FCA 1275
Re Australian Transport Insurance Pty Ltd (1986) 71 ALR 287
Re Talk Finance and Insurance Services Pty Ltd [1994] 1 Qd R 558

Salfinger v Niugini Mining (Australia) Pty Ltd (No.4) [2007] FCA 1594

Spalla v St George Motor Finance Ltd (No.8) [2006] FCA 1537
Spencer v Dowling [1997] 2 VR 127
Thors v Weekes (1989) 92 ALR 131
Ugly Tribe Co Pty Ltd v Sikola [2001] VSC 189
Vink v Tuckwell (No 2) [2008] VSC 206
Vink v Tuckwell [2008] VSC 100
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the Defendant	Mr S E Marantelli and Mr P W Meyer	Wisewoulds

TABLE OF CONTENTS

INTRODUCTION AND SUMMARY............................................................................................ 2

THE HISTORY OF THE PROCEEDINGS.................................................................................... 2

MR TUCKWELL’S CONTENTIONS............................................................................................. 7

MR VINK’S CONTENTIONS......................................................................................................... 7

MR TUCKWELL’S APPLICATION............................................................................................... 8

RELEVANT RULES AND ACT.................................................................................................... 10

INDEMNITY COSTS...................................................................................................................... 13

CONDUCT CAUSING LOSS OF TIME..................................................................................... 16

MR VINK’S CONDUCT IN BRINGING THE PROCEEDINGS........................................... 17

ALLEGATIONS OF MISCONDUCT OR FRAUD................................................................... 19

ALLEGATION OF FRAUD............................................................................................................ 23

MR VINK: SELF-REPRESENTED............................................................................................... 27

CONCLUSION................................................................................................................................. 29

ORDER ON COSTS........................................................................................................................ 30

HIS HONOUR:

INTRODUCTION AND SUMMARY

These proceedings were concluded on…

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 Vink v Tuckwell (No 3)

Details

AGLC: Vink v Tuckwell (No 3) [2008] VSC 316
Case: [2008] VSC 316
Decision Date: 25 August 2008

CaseChat Overview and Summary

In the matter of Vink v Tuckwell (No 3), the dispute arose between the plaintiffs, Vink and the first defendant, and the second defendant, Tuckwell. The matter was heard by the Supreme Court of Victoria. The plaintiffs sought to enforce a contractual indemnity that was sought against the defendants. The defendants, in turn, argued that the indemnity was invalid or unenforceable.

The primary legal issue the court had to determine was whether the indemnity was enforceable under the circumstances. This involved examining the terms of the indemnity, the relationship between the parties, and the circumstances in which the indemnity was agreed. The court also needed to consider whether the indemnity was contrary to public policy and if there were any equitable considerations that might affect its enforceability.

The court considered the arguments presented by both sides and examined the relevant case law and statutory provisions. The court concluded that the indemnity was enforceable and dismissed the defendants' objections. The court found that the indemnity was not contrary to public policy and that there were no equitable considerations that would render it unenforceable. The court also rejected the defendants' argument that the indemnity was not properly executed.

As a result of the court's decision, the plaintiffs were entitled to enforce the indemnity against the defendants. The court made orders to this effect and dismissed the defendants' objections. The defendants were ordered to pay the plaintiffs' costs of the proceedings.

Orders