Cassar v Cavanagh - [2022] VSC 423

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

CORPORATIONS LIST

S ECI 2021 03240

IN THE MATTER OF AUSWIDE CHAUFFEUR SERVICES PTY LTD (ACN 125 366 832)

and

IN THE MATTER OF AUS WIDE PROPERTY DEVELOPMENT PTY LTD (ACN 160 448 644)

RAYMOND PAUL CASSAR	Plaintiff
v
ROBERT DAVID CAVANAGH	Defendant

---

JUDGE:	ATTIWILL J
WHERE HELD:	Melbourne
DATES OF HEARING:	27 and 29 July 2022
DATE OF JUDGMENT:	2 August 2022 (oral reasons) 4 August 2022 (written reasons)
CASE MAY BE CITED AS:	Cassar v Cavanagh
MEDIUM NEUTRAL CITATION:	[2022] VSC 423

---

PRACTICE AND PROCEDURE - Application by defendant for leave to file and serve an expert report – Defendant did not file and serve expert report within the times set by the Court’s orders - Principles for resolving case management disputes – Civil Procedure Act 2010 (Vic) ss 7, 8, 9, 20, 25 and 51 – Northern Health v Kuipers [2015] VCSA 172 – Whether the defendant has given a satisfactory explanation for delay – Impact of the grant of leave – Prejudice to the plaintiff - Leave granted.

COSTS – Whether the Court should order costs in a gross sum – Supreme Court (General Civil Procedure ) Rules 2015 (Vic) r 63.07(2)(c), Civil Procedure Act 2010 ss 7, 8, 9 and 65C(2)(c) - Giurina v Greater Geelong City Council (No 2) [2021] VSCA 341 - Whether the approach taken to the estimate of costs is logical, fair and reasonable - Whether leave to file and serve the expert report should be conditional upon the payment of the costs - Whether the Court should stay any order for costs in a gross sum until the hearing and determination of the proceeding – No condition imposed on the grant of leave – Gross sum costs order made, stayed for 14 days.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Herskope	Ferraro and Singh Pty Ltd
For the Defendant	Mr J Petras	Ansell Lawyers

HIS HONOUR:

INTRODUCTION

The defendant applies for leave to file and serve an expert report of a Mr McColl exhibited to an affidavit of Mr Ansell, the defendant’s solicitor, sworn 27 July 2022.

PARTIES MATERIAL

The plaintiff relied upon:

(a) affidavits of Mr Ferraro, the plaintiff’s solicitor, sworn 10 June 2022, 22 July 2022 and 26 July 2022;

(b) affidavits of Mr Ansell, the defendant’s solicitor, sworn 17 May 2022, 14 June 2022 and 26 July 2022; and

(c) submissions filed 26 July 2022.

The defendant relied upon:

(a) an affidavit of Mr Ansell sworn 26 July 2022 and two affidavits of Mr Ansell sworn 27 July 2022; and

(b) submissions filed 26 July 2022.

Counsel for the parties made submissions.

FACTS AND PROCEDURAL HISTORY

I refer to the chronology filed by the plaintiff dated 15 July 2022. This chronology is agreed by the defendant except for paragraphs [13], [14] and [16]. I have read and considered the affidavits.

The plaintiff commenced this proceeding on 6 September 2021.

The proceeding…

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 Cassar v Cavanagh

Details

AGLC: Cassar v Cavanagh [2022] VSC 423
Case: [2022] VSC 423
Decision Date: 2 August 2022 (oral reasons) 4 August 2022 (written reasons)

CaseChat Overview and Summary

The matter of Cassar v Cavanagh was heard in the Supreme Court of Victoria. The defendant sought leave to file and serve an expert report outside the timeframe set by the Court's orders. The application was made under sections 7, 8, 9, 20, 25, and 51 of the Civil Procedure Act 2010 (Vic), and the court considered principles from Northern Health v Kuipers [2015] VCSA 172 to determine whether the defendant provided a satisfactory explanation for the delay and whether granting leave would prejudice the plaintiff.

The court considered whether the defendant's explanation for the delay in filing the expert report was satisfactory. The defendant argued that the delay was due to the complexity of the case and the need for a more detailed report. The court also evaluated the impact of granting leave on the plaintiff and whether it would cause any undue prejudice. The court found that the defendant had provided a reasonable explanation for the delay and that granting leave would not significantly prejudice the plaintiff. Consequently, the court granted leave for the defendant to file and serve the expert report.

In addition to granting leave, the court addressed the issue of costs. The court considered whether it should order costs in a gross sum, referencing Giurina v Greater Geelong City Council (No 2) [2021] VSCA 341. The court examined whether the approach to estimating costs was logical, fair, and reasonable and whether leave to file and serve the expert report should be conditional on the payment of costs. The court decided to make a gross sum costs order, which was stayed for 14 days, allowing for further consideration during the proceeding.

Orders