Caspersz v Garry & Warren Smith Pty Ltd [No 2]
[2023] VSCA 277
•15 November 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCI 2022 0106 |
| ADRIAN CASPERSZ | Applicant |
| v | |
| GARRY & WARREN SMITH PTY LTD (ACN 004 753 333) [NO 2] | First Respondent |
| HONDA AUSTRALIA PTY LTD (ACN 004 759 611) | Second Respondent |
| GARRY & WARREN SMITH GROUP (ABN 53 394 190 214) | Third Respondent |
---
| JUDGE: | NIALL JA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | On the papers |
| DATE OF JUDGMENT: | 15 November 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 277 |
| JUDGMENT APPEALED FROM: | [2022] VCAT 1102 (Quigley J, President) |
---
COSTS – Unsuccessful application for leave to appeal interlocutory decision of President of Victorian Civil and Administrative Tribunal – Where leave to appeal refused – Costs follow the event – No point of principle.
---
| Counsel for written submissions | ||
| Applicant: | In person | |
| Respondents: | No written submissions | |
Solicitors | ||
| Applicant: | — | |
| First and Third Respondents | Maddocks | |
| Second Respondent: | CIE Legal | |
NIALL JA:
On 31 October 2023 the Court refused leave to appeal.[1] The second respondent applied for costs on the basis of the usual rule that costs follow the event. Pursuant to leave, written submissions as to costs were filed by the applicant on 10 November 2023, in which the applicant submits that he should not be required to pay the second respondent’s costs of the application for leave to appeal.
[1]Caspersz v Garry & Warren Smith Pty Ltd [2023] VSCA 264.
The applicant submits that any costs claimed by the second respondent are not commensurate with the applicant’s claim, the second respondent’s case was inconsistent with that of the respondents’ earlier case in the Victorian Civil and Administrative Tribunal (‘VCAT’), and that leave was refused on the basis that the Court had determined not to adjudicate on certain grounds and therefore the actual success of any party has not been determined.
The applicant also alleges a number of errors in the Court’s reasons for refusing leave to appeal. These matters are irrelevant to the question of costs.
In my opinion, no good reason has been shown to depart from the usual order as to costs. It is true that leave to appeal was refused on the basis that the decision of VCAT that was the subject of the application was interlocutory and had been overtaken by events. That is not uncommon in the case of interlocutory decisions and that was a risk the applicant took. In the result, the applicant was unsuccessful on the application and it would not be appropriate for the second respondent to have to bear its own costs of the application.
The applicant should pay the second respondent’s costs of the application for leave to appeal.
---
1