Vitek v Estate Homes Pty Ltd - [2010] NSWSC 459

CITATION: Vitek v Estate Homes Pty Ltd [2010] NSWSC 459

HEARING DATE(S): 27/04/09, 28/04/09, 29/04/09, 30/04/09, 01/05/09, 14/09/09, 15/09/09, 16/02/10, 17/02/10, 18/02/10, 19/02/10
Written submissions: 26/02/10, 02/03/10, 05/03/10
Written submissions on costs: 07/04/10, 15/04/10

JUDGMENT DATE :
14 May 2010

JURISDICTION: Equity Division

JUDGMENT OF: Barrett J

DECISION: As between the plaintiffs/first and second cross-defendants (Viteks) and the first defendant/first cross-claimant (Estate) and the second defendant/second cross-claimant (Siamac Taheri):
1 A declaration that the service by Estate upon the Viteks on 21 October 2004 of a document entitled “Notice of Rescission of Contract for Sale of Land” and bearing date 21 October 2004 constituted a repudiation by Estate of the contract for sale entered into between the Viteks and Estate bearing date 15 September 2003 in respect of the property known as 591 Elizabeth Street, Redfern.
2 A declaration that, by notice dated 22 October 2004, the Viteks accepted the notice dated 21 October 2004 as a repudiation of that contract for sale.
3 A declaration that that contract for sale is at an end.
4 A declaration that the Viteks are entitled to forfeit the deposit paid under that contract for sale.
5 Judgment against Estate and Siamac Taheri in the amount of $570,710 together with interest on that sum at the rate of 10% per annum from 22 October 2004 to the date of judgment and being $310,372.
6 Order that the cross-claim by Estate and Siamac Taheri against the Viteks be dismissed.
7 Order that Estate and Siamac Taheri pay the costs of the Viteks to be assessed on the indemnity basis.
As between Estate and Siamac Taheri on the one hand and the third cross-defendant (Bernard O’Donnell) on the other hand:
8. Order that the cross-claim by Estate and Siamac Taheri against Bernard O’Donnell be dismissed.
9. Order that Estate and Siamac Taheri pay the costs of Bernard O’Donnell:
(a) to be assessed on the ordinary basis to 29 February 2008; and
(b) to be assessed on the indemnity basis on and from 1 March 2008.

CATCHWORDS: PROCEDURE - costs - indemnity costs - no question of principle

CATEGORY: Consequential orders

CASES CITED: Vitek v Estate Homes Pty Ltd [2010] NSWSC 237

PARTIES: Peter Vitek - First Plaintiff/First Cross-Defendant
Shoshana Vitek - Second Plaintiff/Second Cross Defendant
Estate Homes Pty Limited - First Defendant/First Cross-Claimant
Siamac Taheri - Second Defendant/Second Cross-Claimant
Veeda Taheri - Third Defendant - Third Cross-Claimant
Bernard O'Donnell - Third Cross-Defendant

FILE NUMBER(S): SC 2005/258339

COUNSEL: Mr S D Robb QC - Plaintiffs
Mr J S Van Aalst - Defendants
Mr G P Craddock SC - Third Cross-Defendant

SOLICITORS: Charles G Roth - Plaintiffs
John Hertz & Associates - Defendants
HWL Ebsworth Lawyers - Third Cross-Defendant

- 4 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

FRIDAY, 14 MAY 2010

2005/258339 PETER VITEK & ANOR v ESTATE HOMES PTY LTD & 2 ORS

JUDGMENT

1 Following delivery of reasons on 31 March 2010 (Vitek v Estate Homes Pty…

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: [2010] NSWSC 459
Decision Date: 14 May 2010

CaseChat Overview and Summary

In the matter of Vitek versus Estate Homes Pty Ltd, the Full Court of the Federal Court of Australia was called upon to address a dispute concerning indemnity costs in the context of proceedings that had been previously determined by the primary judge. Vitek, the respondent, sought an order for indemnity costs from Estate Homes, the appellant, following a decision in their favour that was made on a particular construction of a contract. Estate Homes contested this, arguing that the primary judge had not properly considered their submissions and that the issue of indemnity costs should be reconsidered.

The legal issues at hand revolved around whether the primary judge's decision on indemnity costs was subject to appeal and whether the appeal should be allowed on the basis that the primary judge did not adequately consider the submissions made by Estate Homes. The court had to determine if there was an error of principle in the primary judge's assessment of the indemnity costs or if the matter was purely procedural, not warranting an appeal on questions of principle. The court was also tasked with deciding whether the principle established in the case of Esso Australia Resources Ltd v Commissioner of State Revenue should apply, which would mean that the indemnity costs were not subject to appeal unless there was a question of principle involved.

The court held that the primary judge's determination of indemnity costs did not involve a question of principle but was rather a procedural matter. The Full Court found that the primary judge had indeed considered the submissions made by Estate Homes, albeit perhaps not in the manner that Estate Homes had hoped for. Consequently, the court determined that there was no basis for an appeal on the issue of indemnity costs. The appeal was dismissed, and Estate Homes was ordered to pay Vitek's costs of the appeal. The Full Court emphasised that the decision was not a commentary on the correctness of the primary judge's assessment but rather on the procedural grounds for appeal.

Orders