Demetrios Vakras v Robert Cripps - [2015] VSCA 234

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2014 0098
S APCI 2014 0099

DEMETRIOS VAKRAS & ANOR	Appellants
v
ROBERT CRIPPS & ANOR	Respondents

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JUDGES:	WARREN CJ, ASHLEY JA and DIGBY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	4 September 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 234

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COSTS — Two proceedings — Five causes of action in defamation proceeding — Advancement of funds in part satisfaction of trial judgment — Appeals successful in respect of three causes of action in defamation proceeding, resulting in remittal of two causes of action for re-trial — Partial repayment of advanced funds appropriate — Stay of re-trial granted pending repayment — Portion of trial costs to abide outcome of re-trial.

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APPEARANCES:	Counsel	Solicitors
For the Appellants	Mr D P Gilbertson QC with Ms S J Varney	HWL Ebsworth Lawyers
For the Respondents	Mr C J Dibb	Efron & Associates

WARREN CJ
ASHLEY JA
DIGBY AJA:

When it made orders on 24 July 2015, the Court reserved the questions as to what orders for costs should be made in respect of the appeal and the first trial, and what order should be made in respect of moneys paid by the appellants in part satisfaction of the judgment below.

The parties have made written submissions. They differ in the proposed outcomes. We will deal seriatim with the issues agitated.

The application for repayment of moneys

In consequence of various steps taken by the parties subsequent to delivery of the judgment at first instance, the appellants paid the respondents $380,900 in part satisfaction of judgment.

The appellants submit that they should now be repaid $284,869, plus simple interest at 5% from the dates respectively on which the payments were made totalling $380,900. $284,869 is the net amount remaining after deducting from $380,900 the amount awarded in favour of Cripps against Ms Raymond and the amount awarded in favour of Redleg against Vakras, and the interest entitlement in respect of both amounts.

It is submitted for the respondents that, although the disposition of moneys paid over was reserved by the Court, no leave was given or order made for submissions on the issue of repayment of such moneys. Presumably for that reason, nothing substantive is submitted by the respondents in opposition to the argument advanced by the appellants as to why the respondents should now repay the sum of $284,869, plus interest and the retrial which has been ordered should be stayed until those sums are repaid to the respondents.

We observe however that the Orders 8 and 9 of 27 July 2015 provide for sequenced written submissions from the parties in relation to questions as to the costs of the appeal and the trial. Order 7 reserves the question of the disposition of moneys paid by the appellants to the respondents pursuant to the trial judgment. In accord with the orders of 27 July 2015 the appellants filed and served written submissions, which by paragraphs 1–8…

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: [2015] VSCA 234
Decision Date: 4 September 2015

CaseChat Overview and Summary

The case of Demetrios Vakras versus Robert Cripps involved a defamation dispute that reached the court. The plaintiff, Demetrios Vakras, sued the defendant, Robert Cripps, for defamation arising from statements made by Cripps. The matter was brought before the court with five causes of action. During the proceedings, Cripps advanced funds in partial satisfaction of the trial judgment. Both parties appealed the decision, resulting in the court allowing appeals on three causes of action, leading to the remittal of two causes of action for re-trial.

The court was required to address the legal implications of Cripps' advancement of funds in partial satisfaction of the trial judgment and determine the appropriate course of action given the successful appeals. The court needed to consider whether Cripps should repay the advanced funds in part and how this would affect the remaining trial costs pending the outcome of the re-trial.

In its reasoning, the court found that a partial repayment of the advanced funds was appropriate. The court granted a stay of the re-trial pending the repayment, and determined that a portion of the trial costs should be retained pending the outcome of the re-trial. The court's decision balanced the need for justice in the remaining causes of action with the financial implications of the advanced funds and the appeals.

The court's final order was that Cripps should repay a portion of the advanced funds, and a stay of the re-trial was granted pending this repayment. Additionally, a portion of the trial costs was to be retained pending the outcome of the re-trial. This decision ensured that the financial aspects of the litigation were addressed while the remaining causes of action were appropriately managed.

Orders