SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2015 0047
| PERSEPHONE WALES (as the representative of the Estate of MURRAY WRIGHT WALES, deceased) | First Applicant |
| and | |
| ROHAN WRIGHT WALES | Second Applicant |
| v | |
| GLADYS WALES | First Respondent |
| and | |
| ROSLYN MATEAR | Second Respondent |
| and | |
| SUZANNE MARIE CASE | Third Respondent |
| S APCI 2015 0066 | |
| JULIAN WALES | Applicant |
| v | |
| GLADYS WALES | First Respondent |
| and | |
| ROSLYN MATEAR | Second Respondent |
| and | |
| SUZANNE MARIE CASE | Third Respondent |
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| JUDGES: | KYROU and McLEISH JJA and GINNANE AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 18 December 2015 |
| DATE OF JUDGMENT: | 18 December 2015 |
| MEDIUM NEUTRAL CITATION: | Wales v Wales (No 2) [2015] VSCA 365 |
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COSTS – Trustees – Application for leave to appeal refused – Whether respondents’ costs of negotiating summary of facts should be paid by applicant – Whether applicant’s costs of preparing amended written case should be paid by respondents – Applicant ordered to pay respondents’ costs of the application for leave to appeal.
COSTS – Trustees – Applications for leave to appeal refused – Respondents sought direction that Costs Court may allow fees of senior counsel in excess of scale – Whether departure from scale justified – Direction refused – Supreme Court (Chapter I Scale of Costs Appendices A and B Amendment) Rules 2014 r 19.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicants in S APCI 2015 0047 | Mr R Wells | Tolhurst Druce & Emmerson |
| For the Applicant in S APCI 2015 0066 | In person | |
For the Respondents | Mr C M Archibald | HWL Ebsworth Lawyers |
KYROU JA
McLEISH JA
GINNANE AJA:
The Court dismissed these two applications for leave to appeal against orders as to costs in respect of a proceeding commenced and discontinued in the Trial Division.[1] The question of costs now falls to be decided.
The respondents in both applications sought orders that the respective applicants pay their costs of the application for leave. They also sought a direction that, in assessing or taxing those costs, the Costs Court may allow the fees of senior counsel for the respondents in excess of scale.
The applicants in proceeding S APCI 2015 0047 (‘the first proceeding’) accepted that they should pay the respondents’ costs but resisted the direction in respect of the costs of senior counsel.
Julian Wales, the applicant in proceeding S APCI 2015 0066 (‘the second proceeding’), appearing in person, also accepted that he should pay the respondents’ costs, except that he sought an order that the costs of the negotiations for a joint summary of facts, which took place between the parties between approximately 3 August 2015 and 17 September 2015, and the costs of preparing his amended written case, should instead be paid personally by the respondents. The joint summary in question was a summary in both proceedings which the registry had sought from all parties. When Julian Wales commenced the second proceeding, pursuant to leave to do so out of time, an agreed summary in the first proceeding was either in…
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- AGLC
- Wales v Wales (No 2) [2015] VSCA 365
- Case
- [2015] VSCA 365
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were twofold. Firstly, whether the respondents' costs of negotiating the summary of facts should be paid by the applicant. Secondly, whether the applicant's costs of preparing the amended written case should be paid by the respondents. Additionally, the respondents sought a direction that the Costs Court may allow fees of senior counsel in excess of the scale, arguing that the departure from the scale was justified.
The court found that the applicant's application for leave to appeal was without merit and therefore refused the application. Regarding the costs, the court held that the primary judge's assessment of the costs was appropriate, and thus the respondents were entitled to their costs of negotiating the summary of facts from the applicant. Conversely, the court determined that the applicant should bear the costs of preparing the amended written case. The court also refused the respondents' application for a direction that the Costs Court may allow fees of senior counsel in excess of the scale, finding that there was no justification for departing from the established scale. The applicant was subsequently ordered to pay the respondents' costs of the application for leave to appeal.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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