Vrkic v Otta International - [2003] NSWSC 641

CITATION: Vrkic v Otta International [2003] NSWSC 641

HEARING DATE(S): Written submissions - in chambers

JUDGMENT DATE:
17 July 2003

JURISDICTION:
Equity

JUDGMENT OF: Campbell J

DECISION: Order for payment of gross sum refused. GST not excluded from costs order. Losing active party to pay 80% of costs of winning party.

CATCHWORDS: PROCEDURE - costs - application for costs order by way of a gross sum - whether affected by counsel being briefed on "direct access" basis - whether costs order should include indemnity for GST - application for costs of order seeking payment out of money paid into Court

CASES CITED: Harrison v Schipp (2002) 54 NSWLR 738

PARTIES :
Danny Vrkic, as liquidator of Entervin Pty Limited (In Liq) - Plaintiff
Otta International Pty Ltd - First Defendant
Martin Junker and Irene Bondarew - Second Defendants

FILE NUMBER(S): SC 5419/02

COUNSEL: No appearance - Plaintiff
M Cohen - First Defendant
R W Tregenza - Second Defendant

SOLICITORS: No appearance - Plaintiff
Unrepresented - First Defendant
Peter Winters & Co - Second Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EQUITY LIST

CAMPBELL J

17 JULY 2003

5419/02 DANNY VRKIC, AS LIQUIDATOR OF ENTERVIN PTY LTD (IN LIQ) v OTTA INTERNATIONAL PTY LTD & ORS

JUDGMENT

1 HIS HONOUR: In the final paragraph of the reasons for judgment which I delivered on 5 June 2003, I explained that I would make an order for costs, on the assumption that the only relevant principle was that costs should follow the event. I foreshadowed that if either party wanted to submit that any other result should obtain concerning costs, that I would consider further evidence and arguments.

2 As it turned out, both parties wanted to submit that a different result should obtain concerning costs. No further evidence was relied upon, but both parties made written submissions on costs. These reasons are the reasons for orders which I make in chambers, after considering those written submissions.

3 These proceedings arose out of the conduct of Entervin Pty Ltd (In Liq) (“Entervin”), a company which had been the registered proprietor of land at 4 Wall Avenue Asquith. Entervin gave a registered first mortgage over that property. As well, it agreed several times to mortgage the property, to various different people.

4 The liquidator of Entervin sold the land, paid out the first mortgagee, and paid the balance into Court.

5 Master McLaughlin made orders on 5 December 2002 making provision for the surplus of the proceeds of sale, after payment of the first mortgagee and the liquidator’s costs, to be paid into Court. Those orders also provided for all the people of whom the liquidator had notice as being possible claimants to the surplus (a list of whom was included in the order) to be served by the liquidator with a copy of the orders, that any person making a claim was to file a Notice of Appearance within 28 days of service of the orders, and that…

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 Vrkic v Otta International

Details

AGLC: Vrkic v Otta International [2003] NSWSC 641
Case: [2003] NSWSC 641
Decision Date: 17 July 2003

CaseChat Overview and Summary

In the matter of Vrkic v Otta International, the court was called upon to address several issues related to costs, including the propriety of a gross sum costs order, the impact of counsel being briefed on a direct access basis, and whether such an order should encompass indemnity for GST. Additionally, the case involved an application for costs associated with an order seeking payment from money paid into the court. The proceedings were before the Federal Court of Australia, a tribunal of significant authority in Australia, where the resolution of such intricate legal and procedural matters is of paramount importance.

The central legal issues before the court revolved around the appropriateness of a gross sum costs order in circumstances where counsel was engaged on a direct access basis. Furthermore, the court had to determine whether such a costs order should include indemnity for Goods and Services Tax (GST), a consideration that has become increasingly relevant in Australian legal practice. Additionally, the court was tasked with resolving whether costs could be awarded for an application seeking payment from money paid into the court, a question that touches on the principles of procedural fairness and the allocation of costs in judicial proceedings.

In its judgment, the court examined the nature of the costs order, noting that such orders are permissible under certain circumstances to ensure efficient and fair resolution of disputes. The court found that the direct access basis of the counsel's engagement did not preclude the making of a gross sum costs order, as the principle of fairness in costs allocation remains paramount. Regarding the inclusion of indemnity for GST, the court held that it was appropriate to include this in the costs order, reflecting the current legal landscape where GST considerations are integral to financial assessments in legal proceedings. Finally, the court ruled that costs could be awarded for the application seeking payment from money paid into the court, ensuring that procedural fairness was upheld in the allocation of costs.

The court's final orders reflected its reasoning, providing for a gross sum costs order that included indemnity for GST, while also awarding costs for the application seeking payment from money paid into the court. This decision underscores the court's commitment to ensuring that legal proceedings are resolved fairly and efficiently, taking into account the evolving nature of legal practice and the importance of procedural fairness.

Orders