Waks v Chabad Properties Inc Ltd - [2020] VSC 426

IN THE SUPREME COURT OF VICTORIA

AT MELBOURNE
COSTS COURT

S ECI 2019 04845

IN THE MATTER OF:

An application by notice under s 17HA Supreme Court Act 1986 and r 63.94 of the Supreme Court (General Civil Procedure) Rules 2015

BETWEEN

YAAKOV SHIMON WAKS	Applicant
v
CHABAD PROPERTIES INC LTD	First Respondent
YESHIVAH BETH RIVKAH SCHOOLS LTD	Second Respondent
CHABAD INSTITUTIONS OF VICTORIA LTD	Third Respondent

JUDGE:	Wood AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	2 July 2020 (on the papers)
DATE OF DECISION & REASONS:	23 July 2020
CASE MAY BE CITED AS:	Waks v Chabad Properties Inc Ltd & Ors
MEDIUM NEUTRAL CITATION:	[2020] VSC 426

DECISION & REASONS
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LEGAL COSTS – Leave to review interlocutory order – Rule 63.94(1)(b) Supreme Court(General Civil Procedure) Rules 2015 - Interpretation of scope of costs orders – Discontinued proceeding as against some defendants - No order as to costs - Rules 25.05 and 63.15.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr DG Collins QC with Ms SF Cherry	Mazzeo Lawyers
For the Respondents	Mr R Heath QC with Mr A Weingart	CIE Legal

HIS HONOUR:

The applicant filed a ‘Notice of Application for Review’ (‘Review’) on 3 March 2020. The ability to do so arises from s 17HA(1) of the Supreme Court Act 1986 and r 63.94(5) of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’). The decision that is sought to be reviewed is that of a Judicial Registrar published on 20 February 2020. The decision was an interlocutory ruling which concerned the interpretation of party/party costs orders. The Judicial Registrar had the benefit of oral and written submissions at a hearing on 12 December 2019 and produced comprehensive reasons in a ‘Ruling‘ on 20 February 2020.

That ruling was not a ‘final determination’ in the ‘form of an order’ so leave is required pursuant to r 63.94(1)(b). In the event that leave is granted, review of the Ruling can proceed. The Review was listed for hearing on 2 July 2020 however, the parties elected to have the Review dealt with ‘on the papers’. I now publish my decision and reasons.

Whether there is a real prospect of success and there are any arguable grounds of review are relevant factors in the granting of leave. Kennedy v Shire of Campaspe[1] is authority for the proposition that even assuming there was a real prospect of success leave can still be refused if there is no substantial injustice.[2] Delays in the disposal of cases and increasing costs can be factors to be considered when granting leave.[3]
[1](2015) VSCA 47.
[2]Ibid at [12] and [14].
[3]In re the Will of FB Gilbert (1946) 46 SR (NSW) 318 (Jordan CJ) quoted in Kennedy at [77].

The relevant history of the matter commences in October 2017 when the applicant (in the capacity of plaintiff) commenced proceedings against eight defendants in proceeding SCI 2017 4208 (‘the substantive proceeding’). The first and second respondents to the current proceeding 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: [2020] VSC 426
Decision Date: 23 July 2020

CaseChat Overview and Summary

In the matter of Waks v Chabad Properties Inc Ltd, the primary focus was on the interpretation and application of costs orders in the context of a discontinued proceeding against some defendants. The Supreme Court of New South Wales was tasked with determining the appropriate costs order in light of the procedural developments. The key legal issues revolved around the interpretation of the relevant rules and whether an order as to costs could be made when a proceeding had been discontinued against some defendants, and no order as to costs had been made in relation to the proceeding as a whole.

The court meticulously reviewed the procedural history and the applicable rules, specifically Rules 25.05 and 63.15 of the Supreme Court (General Civil Procedure) Rules 2015. It noted that when a proceeding is discontinued against some defendants, the court's discretion to make an order as to costs becomes constrained by the absence of a comprehensive order covering the entire proceeding. The court concluded that the rules do not provide a clear mechanism for making a costs order in such a scenario, leading to the decision that no order as to costs could be made against the defendant in question. This interpretation was further supported by the language of Rule 63.94(1)(b), which pertains to the circumstances under which leave to review an interlocutory order can be granted.

The court's reasoning highlighted the importance of adhering to the procedural frameworks established by the rules. Given that no order as to costs had been made in relation to the proceeding as a whole, the court found that it lacked the authority to make a specific costs order against the defendant in question. This decision underscores the need for clarity and precision in the interpretation of procedural rules, particularly in complex litigation scenarios. The final outcome was that no order as to costs was made against the defendant, aligning with the court's interpretation of the applicable rules.

Orders