Batrouney v Forster

Court of Appeal (Vic)|2016-06-06|Before: Santamaria JA, Beach JA, Leish JA

PRACTICE AND PROCEDURE - Orders - Whether proceeding should be remitted to Trial Division - Whether respondent should be ordered to pay sum of money claimed by applicants to applicants - Respondent ordered to pay sum of money conceded by respondent to applicants and matter remitted to Trial Division in respect of balance of applicants' claim.

PRACTICE AND PROCEDURE - Costs - Costs of trial to date - Whether costs of trial should be remitted to Trial Division - Not appropriate to remit costs of trial to date - Apportionment - Whether costs of trial to date should be apportioned - Respondent ordered to pay 70 per cent of costs of trial to date.

PRACTICE AND PROCEDURE - Costs - Costs of application to amend notice of application for leave to appeal.

PRACTICE AND PROCEDURE - Stay - Application for stay pending application for special leave to appeal to High Court - No special or exceptional circumstances - Refusal of stay would not render appeal nugatory - Not a case where refusal of stay would result in loss of subject matter of appeal - Application for stay refused.

1 On 27 April 2016, this Court published reasons for judgment in the application for leave to appeal and appeal brought by the receivers of the law practice known as Hollows Lawyers, the applicants, against the respondent.[1] At the time we published our reasons, we gave the parties leave to file and serve short submissions concerning the orders that they submitted should be made by the Court in conformity with the published reasons. The parties have now filed a series of submissions and responses in support of the various orders for which they contend.

2 The submissions filed by the parties disclose that there is agreement between them about the making of the following orders:

1. The applicants are granted leave to file an amended application for leave to appeal.[2]

2. The application for leave to appeal is granted.

4. The parts of the judgment of the trial judge published on 27 May 2015 dismissing the claims in respect of Double Disbursement Payments and the claims in respect of the Scale Fee Agreements are set aside.

5. The judgment and orders of the trial judge made 7 October 2015 are set aside.

(a) whether the proceeding should be remitted to the Trial Division for calculation of the amount that the respondent is required to pay to the applicants, or whether the respondent should now be required to pay amounts as claimed by the applicants;

(b) whether this Court should remit the question of the costs of the trial to the Trial Division, or make orders dealing with those costs;

(c) the costs of the amendment of the application for leave to appeal; and

(d) the question of whether there should be a stay of execution of judgment pending the hearing and determination of any special leave application that might be made by the respondent.

4 The applicants seek an order in the following terms:

The respondent pay to the applicants the amount of $6,758,433.80 (comprising $1,507,750.45 in respect of the Double Disbursement Payments claim and $5,250,683.35 in respect of the Scale Fee Agreements claim).

5 The respondent seeks an order that the matter be remitted to the trial judge for calculation of the amount that the respondent is to pay the applicants in respect of the Double Disbursement Payment claim and the Scale Fee Agreements claim.

6 The respondent maintains that there were additional arguments that it ran at trial that would reduce the amounts claimed by the applicants. The respondent contends that those arguments have not yet been ruled upon, and that the matter should be remitted so that the trial judge can determine the arguments yet to be ruled upon.

7 The applicants contend that the matters now sought to be raised by the respondent were pleaded and dealt with at trial, but not raised by the respondent in any manner in the appeal. The applicants point to the fact that the respondent filed a notice of contention in the appeal but did not, in that notice of contention, contend that if the appeal succeeded, the applicants were nonetheless not entitled to recover the sums sought. Additionally, the applicants note that there was no application for leave to cross-appeal, nor any written or oral argument in the appeal that, if the appeal succeeded, the applicants were still not entitled to recover the relevant sums.

8 In a further written submission, the respondent concedes that, consistently with the reasons of this Court, the respondent should pay to the applicants the sum of $2,034,563.44 (made up of $206,540.03 in relation to the Double Disbursement Payment claims and $1,828,023.41 in respect of the Scale Fee Agreements claim).

9 In our view, there should be an order requiring the respondent to pay the conceded amount of $2,034.563.44 to the applicants. The proceeding should then be remitted to the Trial Division to determine what (if any) further amounts are owed by the respondent to the applicants in respect of the Double Disbursement Payment claims and the Scale Fee Agreement claims. We do not accept the applicants' submissions that, in the absence of a relevant notice of contention, application for leave to cross-appeal, or argument, the respondent should now be shut out from having resolved in the Trial Division arguments that have not yet been resolved by the trial judge or this Court. In this regard, we note that in their application for leave to appeal, the applicants did not seek judgment for any specific amount. Instead, the applicants sought orders in the following terms:

The judgment of the learned trial judge, dismissing the appellants' claims, be set aside.
There be judgment for the appellants and the proceeding be remitted to an Associate Justice of the Trial Division for the computation of amounts which the [applicants] are entitled to recover from the respondent pursuant to s 5.5.14 of the Act.
Alternatively, the proceeding be remitted to a justice of the Trial Division for retrial and determination in accordance with the reasons for judgment of the Court of Appeal.
An order that (sic) the respondent pay the appellants' costs of this appeal and the trial below.
Such further or other orders and directions as the court deems appropriate.

10 In circumstances where the applicants did not seek an order for the payment of a specific sum of money in their application for leave to appeal, it is difficult to be critical of the respondent for not filing the suggested notice of contention or taking one of the other steps that the applicants now contend he should have taken.

11 A question arises as to whether the remittal we will order should be made to the trial judge or to another judge. That issue falls to be determined by reference to the principles set out in Murphy v Victoria.[3] In his primary reasons[4] and in his reasons with respect to costs,[5] the trial judge, at times, expressed himself in firm terms that were critical of the applicants. Those statements, however, were made in respect of different issues from those which are to be remitted to the Trial Division. While it will be a matter for the trial judge, we see no impediment to his Honour hearing and determining the issues we propose to remit to the Trial Division.

12 For the sake of completeness, we should say that we are remitting the question of what (if any) further amount should be paid by the respondent to the applicants only for the purpose of the trial judge determining any issues that have already been argued, but not already been determined by him or by the provision of this Court's reasons. There will be no occasion for the calling of further evidence or the making of fresh arguments to the trial judge.

13 The applicants submit that the respondent should be ordered to pay 80 per cent of their costs of the trial (including any reserved costs), with those costs to be assessed by the Costs Court in default of agreement. The respondent submits that the question of the costs of the trial should be remitted to the Trial Division. In the alternative, the respondent submits that there are a number of matters (identified in the respondent's submissions dated 18 May 2016) which justify an order that the parties should bear their own costs of the trial. One of the matters the respondent points to is the applicants' lack of success in respect of the 'no fee agreement clients'.[6]

14 The applicants have enjoyed substantial success in this proceeding. Much of what was said by the trial judge has been reversed by this Court's reasons for judgment. Nevertheless, the applicants did not succeed on all issues at trial. In the circumstances, we accept that there should be some apportionment of costs. We do not think, however, that the issue of costs should be remitted to the Trial Division. We see no reason why this Court should not deal with the trial costs. Having considered all of the matters raised by the respondent, we are of the view that it would be appropriate to order the respondent to pay 70 per cent of the applicants' costs of the trial (including reserved costs). That said, the costs of the further hearing and determination of the remitted proceeding do not form part of the costs order we will make. Those costs will be in the discretion of the Trial Division.

15 The respondent submits that, while the applicants should have their costs of the appeal, the applicants' costs of the appeal should not include the costs of the amendment of the application for leave to appeal. Additionally, the respondent submits that he should have his costs of the amendment.

16 The amendment was largely a matter of formality. The amendment raised an issue that had been argued at trial and which the applicants wished to re-agitate on appeal. The respondent opposed the amendment on the basis that, on his submissions, the point sought to be agitated by the amendment was a bad one. It was thus submitted that the amendment sought would be futile. The costs reasonably incurred in taking that position must be regarded as almost inconsequential in the context of the present litigation. Nevertheless, we accept the proposition that the applicants should not have any costs associated with the making of the amendment application. We do not, however, propose to order the applicants to pay the respondent's costs of resisting the amendment. While it was appropriate for the respondent to resist the amendment on the basis that it was a point that should not succeed, there was no reasonable basis for the respondent to incur costs of any significance in opposing the amendment sought.

17 The principles governing whether this Court should grant a stay pending the hearing and determination of a special leave application are well-known. An applicant for a stay must show special or exceptional circumstances. In the present case, we are not persuaded that there are any special or exceptional circumstances. Nor are we persuaded that the respondent's prospects of successfully obtaining special leave are sufficient to justify the granting of a stay. Indeed, no 'special leave' point has yet been identified by the respondent.

18 Additionally, it should be noted that this is not a case where any failure to grant a stay is likely to result in the loss of the subject matter of the appeal, or to render any special leave application, or subsequent appeal, nugatory.

The applicants are granted leave to file an amended application for leave to appeal.
The application for leave to appeal is granted.
The appeal is allowed.
The parts of the judgment of the trial judge delivered on 27 May 2015 dismissing the claims in respect of the Double Disbursement Payments and the claims in respect of the Scale Fee Agreements are set aside.

5 (a) The respondent is ordered to pay the appellants the amount of $2,034,563.44.

(b) The proceeding be remitted to the Trial Division for the purpose of calculating what (if any) further amount the respondent is to pay the appellants in respect of the Double Disbursement Payments claim and the Scale Fee Agreements claim.

The respondent pay the appellants' costs of the application for leave to appeal and the appeal, with those costs to be assessed by the Costs Court in default of agreement, save for the appellants' costs of the application to amend the application for leave to appeal.
The judgment and orders of the trial judge made on 7 October 2015 are set aside.
The respondent pay 70 per cent of the appellants' costs of the trial to date (including any reserved costs) with those costs to be assessed by the Costs Court in default of agreement.

[1] Batrouney v Forster [2016] VSCA 80.

[2] There is no dispute about the form of the amendment. Both sides suggest that the amendment be in a form already known, and annexed to the Court's orders.

[3] [2014] VSCA 238; (2014) 45 VR 119, 151-153 [106]-[111] ('Murphy').

[4] Batrouney v Forster [2015] VSC 230.

[5] Batrouney v Forster (No 2) [2015] VSC 541.

[6] The no fee agreement clients involved a claim in respect of two clients in the total sum of $244,707.90: see Batrouney v Forster [2015] VSC 230 [10]-[11].

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