JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	12 November 2018
DATE OF JUDGMENT:	28 November 2018
CASE MAY BE CITED AS:	Davey v Dessco Pty Ltd
MEDIUM NEUTRAL CITATION:	[2018] VSC 720

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ADMINISTRATIVE LAW – Application for leave to appeal from VCAT decision with respect to costs – Cross‑application by the respondent seeking a summary dismissal of the application for leave to appeal – Whether proposed appeal has any ‘real prospect of success’– Whether any material difference between the old test and the new test in VCAT Act s 148 regarding the threshold for leave to appeal – Ikosidekas v Karkanis [2015] VSCA 121, referred to – Grounds for challenging a tribunal’s exercise of discretion with respect to costs – House v The King (1936) 55 CLR 499, applied – Default position that each party bearing its own costs under s 92 of the Retail Leases Act 2003 (Vic) – Exceptions such as where there is vexatious conduct by a party –what amounts to vexatious conduct – Oceanic Sun Line Special Shipping Company Inc v Fay (1998) 165 CLR 197 and 24 Hours Fitness Pty Ltd v W & B Investment Group Pty Ltd [2015] VSCA 216, referred to – relevance of matters extraneous the proceeding not relevant to the question of costs - Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the Defendant	Mr L Virgona

HER HONOUR:

In this proceeding, the applicant, Mr John Davey (‘applicant’) seeks leave to appeal from a decision made by Member Sweeney of the Victorian Civil and Administrative Tribunal (‘VCAT’) on 6 August 2018.[1] The decision sought to be overturned is the Member’s decision to make an adverse costs order against the applicant with respect to applications made by him in a proceeding at VCAT seeking relief against forfeiture under the Retail Leases Act 2003 (Vic) (‘Act’) (‘VCAT proceeding’). The VCAT proceeding was withdrawn in January 2018, after the applicant decided to vacate the respondent’s premises (‘premises’), rendering the relief sought by him nugatory. The question of the costs of the VCAT proceeding were reserved. However, another proceeding concerning substantially the same subject matter is ongoing in VCAT (‘current VCAT proceeding’), where both the applicant and the respondent, Dessco Pty Ltd (‘respondent’) are seeking damages for breach of contract in relation to the applicant’s occupation of the premises, and the respondent’s alleged wrongful termination of the lease.
[1]Davey v Dessco Pty Ltd (Building and Property) [2018] VCAT 1217.

The current VCAT proceeding is not the only litigation under way between the applicant and respondent and their associates. As far as I am aware, four other proceedings have involved the parties to this proceeding, being:

(a) a debt recovery proceeding in the Magistrates’…

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 Davey v Dessco Pty Ltd

Details

AGLC: Davey v Dessco Pty Ltd [2018] VSC 720
Case: [2018] VSC 720
Decision Date: 28 November 2018

CaseChat Overview and Summary

Davey commenced proceedings against Dessco in the Victorian Civil and Administrative Tribunal, where a dispute arose concerning a retail lease. The Tribunal issued a decision, and Davey subsequently applied for leave to appeal that decision to the Supreme Court. Dessco filed a cross-application seeking a summary dismissal of the application for leave to appeal, arguing that the application had no real prospect of success and that the applicant had not demonstrated a material difference between the previous and current legal tests for leave to appeal. The Supreme Court was required to determine whether the appeal had a real prospect of success and whether there was a material difference between the previous and current legal tests for leave to appeal under the VCAT Act.

The Court considered the statutory provisions and case law relevant to the appeal. It found that the test for leave to appeal under VCAT Act s 148 remained unchanged in substance, despite recent amendments. The Court relied on Ikosidekas v Karkanis to conclude that the new test did not create a material difference from the previous one. The Court also examined the grounds for challenging a tribunal's exercise of discretion with respect to costs, applying House v The King and holding that the default position was that each party bears its own costs under s 92 of the Retail Leases Act 2003 (Vic). The Court further considered whether there was vexatious conduct by a party, referencing Oceanic Sun Line Special Shipping Company Inc v Fay and 24 Hours Fitness Pty Ltd v W & B Investment Group Pty Ltd.

After considering the arguments and authorities, the Court concluded that the application for leave to appeal had no real prospect of success. The Court found that the applicant had not demonstrated a material difference between the previous and current legal tests for leave to appeal and that the application did not meet the threshold for leave to appeal. The Court also held that there was no vexatious conduct by a party that would warrant an exception to the default position of each party bearing its own costs. Consequently, the Court dismissed the application for leave to appeal and refused the applicant's request for an order that the respondent bear the costs of the application.

The Supreme Court dismissed the application for leave to appeal and ordered that each party bear their own costs of the application.

Orders