Caspersz v Garry & Warren Smith Pty Ltd [No 2] Summary

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

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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)

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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.

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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.

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CaseChat Overview and Summary

Adrian Caspersz applied to the Supreme Court of Victoria Court of Appeal for leave to appeal a decision of the Victorian Civil and Administrative Tribunal. The dispute in the underlying matter involves the applicant and several respondents. The Supreme Court of Victoria Court of Appeal was required to decide whether the applicant should be granted leave to appeal the interlocutory decision of the President of the Victorian Civil and Administrative Tribunal. The Court was also required to determine the costs of the unsuccessful application for leave to appeal.

In its decision, the Court held that the interlocutory nature of the VCAT decision, which had been overtaken by events, justified the refusal of leave to appeal. The Court held that the refusal of leave to appeal was not based on the merits of the case, but rather on the procedural grounds of the interlocutory nature of the decision. The Court found that no good reason had been shown to depart from the usual order as to costs, which is that costs follow the event. The applicant had taken the risk of appealing an interlocutory decision, and as a result of the refusal of leave to appeal, the applicant was unsuccessful. Therefore, it was appropriate for the applicant to bear the costs of the second respondent’s application for leave to appeal.

The Court ordered that the applicant pay the second respondent’s costs of the application for leave to appeal. The Court held that the applicant's arguments regarding the inconsistency of the second respondent’s case with the earlier case in VCAT and the alleged errors in the Court’s reasons for refusing leave to appeal were irrelevant to the question of costs. The Court held that the applicant had not shown any good reason to depart from the usual order as to costs, and therefore the applicant should bear the costs of the second respondent’s application for leave to appeal.

Caspersz v Garry & Warren Smith Pty Ltd [No 2]

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established