Concrete Construction Systems Pty Ltd v Inglese (No 2) - [2024] VSC 335

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2023 01254

CONCRETE CONSTRUCTION SYSTEMS PTY LTD (ACN 156 347 107)	Applicant
v
GIUSEPPE INGLESE	First Respondent
And
GWYNNETH INGLESE	Second Respondent

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JUDGE:	Harris J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 April 2024
DATE OF JUDGMENT:	20 June 2024
CASE MAY BE CITED AS:	Concrete Construction Systems Pty Ltd v Inglese (No 2)
MEDIUM NEUTRAL CITATION:	[2024] VSC 335

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COSTS – Costs of application in Supreme Court for leave to appeal orders of VCAT – Application for orders relating to costs of applications in VCAT – Alternative application for remittal of proceeding to VCAT for making of costs orders – Costs issues already determined by VCAT or reserved, with liberty to apply – Inappropriate to make orders as to costs in VCAT.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Gurr SC with Mr N Andreou	Robert James Lawyers
For the Respondents	Mr B Reid	Lovegrove & Cotton

HER HONOUR:

Introduction

On 24 May 2024, I published reasons for dismissing Concrete Construction Systems Pty Ltd’s applications for:

(a) an extension of time to seek leave to appeal from order 1 of the orders of Senior Member Kirton made on 9 August 2021 in Victorian Civil and Administrative Appeals Tribunal proceeding BP1513/2017;

(b) leave to appeal from order 1 of the orders made by Senior Member Farrelly on 14 March 2023 in Victorian Civil and Administrative Appeals Tribunal proceeding BP1513/2017.[1]

[1]Concrete Constructions Systems Pty Ltd v Inglese [2024] VSC 266.

I also ordered that the parties were to confer on the issue of costs of the proceeding in this Court and, absent agreement, to file submissions on that issue. The parties did not reach agreement and submissions have been filed by the parties. The respondents, the Ingleses, seek an order that their costs of the proceedings in this Court be paid by the applicant Concrete Construction, which is not opposed.[2] The Ingleses also seek orders that Concrete Construction pay their costs of two applications in the Tribunal, which is opposed.
[2]First and Second Respondents’ Submissions on Costs dated 7 June 2024, [2(a)]; Appellant’s Submissions on Costs dated 17 June 2024, [3].

I will make the orders sought with respect to the costs of the proceedings in this Court, but I will not make orders relating to the costs of the applications in the Tribunal, for the following reasons.

The proceeding below

The substantive issues in the Tribunal concerned contractual disputes between Concrete Construction, which is a builder, and the Ingleses, who are the developers who engaged them. Concrete Construction claimed damages for the costs of variations and other sums under the building contract. The Ingleses counterclaimed for damages for the costs of alleged defects and liquidated damages for delay.

For the reasons given in Concrete Construction Systems Pty Ltd v Inglese,[3] an order made on 9 August 2021 by Senior Member Kirton pursuant to…

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.

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Details

Case: [2024] VSC 335
Decision Date: 20 June 2024

CaseChat Overview and Summary

Concrete Construction Systems Pty Ltd was involved in a dispute with Inglese, which was heard by the Supreme Court of Victoria. The primary issue was the determination of costs associated with various applications made in the Supreme Court for leave to appeal decisions from the Victorian Civil and Administrative Tribunal (VCAT). The case also involved an application for orders relating to costs in VCAT and an alternative application for the remittal of the proceedings to VCAT for the making of costs orders. The Supreme Court was required to decide whether it was appropriate to make orders as to costs in VCAT, considering that the costs issues had already been determined or reserved by VCAT, with a liberty to apply.

The court examined the procedural history and the nature of the costs orders already made by VCAT. It was noted that the costs issues were either fully determined or reserved, with a provision for further applications to be made to VCAT. The court considered the appropriateness of making further orders in the Supreme Court regarding costs, given that the primary determinations had already been handled by VCAT. The Supreme Court concluded that it was inappropriate to make orders as to costs in VCAT, as the primary responsibility for determining such matters lay with VCAT, especially when the costs issues had already been addressed or reserved by VCAT.

Given the circumstances, the Supreme Court dismissed the application for orders relating to costs in VCAT and the alternative application for remittal. The court found that the procedural mechanisms already in place allowed for the appropriate determination and potential review of costs issues within VCAT, without the need for additional orders from the Supreme Court. This decision underscored the importance of respecting the jurisdictional boundaries and procedural frameworks established for cost determinations in administrative tribunals.

The final orders of the court were to dismiss both the application for orders relating to costs in VCAT and the alternative application for remittal, affirming that any further orders regarding costs should be made within the VCAT framework.

Orders