Butera v Mitch Karafili & Co - [2024] VSC 178

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2022 05368

LUCIE BUTERA	Applicant
v
MITCH KARAFILI t/as MITCH KARAFILI & CO (ABN 68 838 792 326)	Respondent

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JUDGE:	Forbes J
WHERE HELD:	Melbourne
DATE OF HEARING:	8 February 2024
DATE OF JUDGMENT:	17 April 2024
CASE MAY BE CITED AS:	Butera v Mitch Karafili & Co
MEDIUM NEUTRAL CITATION:	[2024] VSC 178

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ADMINISTRATIVE LAW – Judicial review and appeals – Appeal against refusal of summary dismissal application by Victorian Civil and Administrative Tribunal – Where earlier proceeding was struck out with right of reinstatement – Whether consent orders constituted final determination and if so what was necessarily decided – Whether issue estoppel arises from earlier proceeding – Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 75.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr G Lubofsky	Phillips & Wilkins Solicitors & Consultants
For the Respondent	Mr A Ford	Merhi Lawyers

HER HONOUR:

This is an appeal by Lucie Butera against the Victorian Civil and Administrative Tribunal (VCAT) refusal of her application for summary dismissal. The proceeding against her was one for payment of outstanding fees under a contract for accountancy services.

Mr Karafili trading as Mitch Karafili & Co, (the respondent) provided accountancy services to three clients: Ms Butera, her husband Mr Butera, and a related company JNG Constructions (collectively, the Butera parties) between 1 January 2014 and 31 October 2016. In October 2016 he made an application to VCAT for the amount outstanding for those services, which at that time totalled $189,475.48 (the first proceeding). This claim amount was later reduced to $144,300.88 in or around July 2018. The Butera parties were named as respondents on the basis that all were parties to the contract for Mr Karafili’s accountancy services, being signatories accepting the letter of offer. The first proceeding was settled prior to the hearing with a settlement sum of $110,000 to be paid by the Butera parties in instalments. It is common ground that, although the Deed of Settlement (the Deed) described the Butera parties as paying the settlement sum, only Mr Butera and Mr Karafili signed the document. Consent orders, also signed only by Mr Butera and Mr Karafili were provided to VCAT. On 30 July 2018 VCAT made orders striking out the proceeding with a right of reinstatement (the July 2018 orders).

After Mr Butera made two payments totalling $16,000 under the Deed, no further payment was made, so Mr Karafili applied to reinstate the first proceeding against all the Butera parties (the reinstated proceeding). VCAT ordered the proceeding be reinstated. The reinstated proceeding sought orders for the claim amount $144,300.88 less the two instalments paid under the Deed, a claim for $128,300.88 (the final claim amount). Both Ms Butera and Mr Butera opposed the reinstatement: Mr Butera because the Deed did not reflect the agreement reached and Ms Butera on…

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 Butera v Mitch Karafili & Co

Details

AGLC: Butera v Mitch Karafili & Co [2024] VSC 178
Case: [2024] VSC 178
Decision Date: 17 April 2024

CaseChat Overview and Summary

Butera v Mitch Karafili & Co involved an appeal against a decision of the Victorian Civil and Administrative Tribunal (VCAT). The appellant sought a review of VCAT's refusal to summarily dismiss the respondent's proceeding. The earlier proceeding was struck out with the right of reinstatement, and the appellant argued that the consent orders constituted a final determination, which resolved the dispute's merits. The respondent contended that the consent orders did not amount to a final determination and that issue estoppel did not arise from the earlier proceeding.

The court was required to determine whether the consent orders constituted a final determination, and if so, what was necessarily decided. The court also had to consider whether issue estoppel arose from the earlier proceeding. The court examined the relevant provisions of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) and the principles of administrative law that applied to the case.

The court found that the consent orders did not constitute a final determination, and therefore, the issue of issue estoppel did not arise. The court held that the consent orders were interlocutory in nature and did not resolve the dispute's merits. The court also found that the earlier proceeding was not a final determination, and therefore, the appellant's argument that issue estoppel arose from the earlier proceeding was rejected. The court dismissed the appeal and upheld VCAT's decision.

The court's decision was based on the principles of administrative law and the relevant statutory provisions. The court held that the consent orders did not amount to a final determination, and therefore, the issue of issue estoppel did not arise. The court also found that the earlier proceeding was not a final determination, and therefore, the appellant's argument that issue estoppel arose from the earlier proceeding was rejected. The appeal was dismissed, and VCAT's decision was upheld.

Orders