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Di Stasio Pty Ltd v R & K Services Pty Ltd

Di Stasio Pty Ltd v R & K Services Pty Ltd

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Case Copied 12 December 2018 77 min read

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2017 0131

DI STASIO PTY LTD	Appellant
v
R & K SERVICES PTY LTD	Respondent

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JUDGES:	TATE, McLEISH and NIALL JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 August 2018
DATE OF JUDGMENT:	12 December 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 340
JUDGMENTS APPEALED FROM:	[2017] VCC 1358 and [2017] VCC 1630 (Judge Macnamara)

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PRACTICE AND PROCEDURE – Application to reopen case, amend pleading and adduce further evidence – Reasons for judgment had been published but orders had not been made – Principle of finality – Whether judge erred in finding inadvertence rather than neglect – Whether judge properly considered prejudice – Exercise of discretion in interests of justice – Autodesk Inc v Dyason [No 2] (1993) 176 CLR 300, De L v NSW Department of Community Services [No 2] (1997) 190 CLR 207, Spotlight Pty Ltd v NCON Australia Ltd (2012) 46 VR 1, CC Containers Pty Ltd v Lee [No 5] [2013] VSC 619 and Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22, applied – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms W A Harris QC with Mr M F Sharkey	Peer Legal
For the Respondent	Mr A G Uren QC with Mr S Korica	S Smith & Associates

TATE JA:

TABLE OF CONTENTS

*Introduction and summary*.........................................................................................	1
*The grounds of appeal*..................................................................................................	4
*Terms of the contract*...................................................................................................	5
*The pleadings*................................................................................................................	7
*The judge’s reasons*.......................................................................................................	8
(1) The initial reasons....................................................................................................	8
(2) R & K’s reopening application – the June ruling.....................................................	12
(3) Di Stasio’s reopening application – the September ruling........................................	15
(4) R & K’s reopening application revisited – the September reasons............................	19
(5) The final decision – the November reasons...............................................................	22
*Grounds of appeal*........................................................................................................	24
*The principle of finality: was there inadvertence or neglect? — Ground 1(a) & (b)* .............................................................................................................................	24
*Did the judge ignore prejudice or apply the wrong test? — Ground 1(c)*..............	36
*Did the judge err in formulating the costs orders? — Ground 2*............................	40
*Notice of Contention*....................................................................................................	43
*Conclusion on the appeal*............................................................................................	45

Introduction and summary

Between 2012 and 2014 an Italian restaurant, Café Di Stasio, underwent renovations, in two stages: Stage 1 — the expansion of its kitchen; and Stage 2 — the expansion of its office facilities into adjoining premises. The owner, Di Stasio Pty Ltd (‘Di Stasio’), engaged Robert Simeoni Architects Pty Ltd (‘the architect’) to prepare the design. Di Stasio entered into a written ‘cost plus’ contract with a building and construction company, R & K Services Pty Ltd (‘R & K’), to perform the Stage 1 works and later a fixed-price contract with R & K for the Stage 2 works. Disputes arose as the works were carried out. R & K brought proceedings against Di Stasio in the County Court for unpaid progress claims. Di Stasio in turn brought a counterclaim for the cost of works it alleged needed…

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: [2018] VSCA 340
Decision Date: 12 December 2018

CaseChat Overview and Summary

Di Stasio Pty Ltd brought an appeal against R & K Services Pty Ltd in the Supreme Court of Victoria, challenging the dismissal of their application to reopen a case, amend a pleading, and adduce further evidence. The application was made after reasons for judgment had been published but orders had not been made. Di Stasio sought to adduce evidence from a witness who had become available after the reasons for judgment were published.

The primary legal issue was whether the trial judge erred in finding inadvertence rather than neglect in Di Stasio’s failure to adduce the evidence earlier. Additionally, the court had to determine whether the judge properly considered the prejudice to the respondent, R & K Services, in exercising the discretion to allow the reopening of the case. The court also needed to assess whether the exercise of discretion was in the interests of justice.

The Supreme Court found that the trial judge had not erred in finding inadvertence rather than neglect. The court considered that the judge had properly assessed the prejudice to R & K Services, weighing it against the interests of justice. The Supreme Court held that the trial judge had exercised their discretion appropriately, and the appeal was dismissed. The decision underscored the principle of finality in litigation and the importance of considering all relevant factors before allowing a case to be reopened.

Orders