Djordjevich v Rohrt [No 2] - [2022] VSCA 123

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2021 0053
S EAPCI 2021 0071

DAVID DJORDJEVICH	Applicant
v
RICHARD TRYGVE ROHRT (IN HIS CAPACITY AS LIQUIDATOR OF ACN 091 518 302 PTY LTD (IN LIQ) ACN 091 518 302)	Respondent

---

JUDGES:	KENNEDY and WHELAN JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	Determined on the papers
DATE OF RULING:	24 June 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 123
JUDGMENTS APPEALED FROM:	[2021] VSC 178 (Delany J) Djordjevich v Rohrt[No 2] (Unreported, Supreme Court of Victoria, Delany J, 3 June 2021)

---

COSTS – Appeal – Indemnity costs – Whether hopeless case – Whether refusal of ‘offers’ in Calderbank letters unreasonable – Application for indemnity costs refused – Inappropriate to make order directing fees in excess of scale – Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority [No 2] (2005) 13 VR 435 applied.

---

Counsel
Applicant:		Mr JG Levine
Respondent:		Mr S Maiden QC with Ms C Gobbo
Solicitors
Applicant:	Maciel Pizzorno & Co
Respondent:	Mills Oakley

KENNEDY JA
WHELAN JA:

On 10 May 2022, reasons for judgment (‘Reasons’) [1] were handed down in relation to two matters: the applicant’s application for leave to appeal a trial judge’s orders dismissing his proceeding (S EAPCI 2021 0053) (the ‘principal matter’); and an application for leave to appeal the special costs orders made by the judge (S EAPCI 2021 0071) (the ‘costs matter’). These reasons should be read together with those Reasons.
[1]Djordjevich v Rohrt [2022] VSCA 84 (‘Reasons’).
In the principal matter, we ordered that leave to appeal be granted in relation to grounds 3 and 4, but that the appeal on those grounds be dismissed. We otherwise refused leave to appeal. We also refused leave to appeal in relation to the costs matter. We further made orders timetabling submissions for the resolution of costs in respect of each matter in default of any agreement.
By written submissions dated 27 May 2022, the respondent sought an order that the applicant pay the respondent’s costs of the application for leave to appeal and the appeal in the principal matter on the standard basis up to and including 4 June 2021, and on an indemnity basis thereafter. In respect of the costs matter, the respondent sought an order that the applicant pay the respondent’s costs of the matter on the standard basis up to and including 20 July 2021, and on an indemnity basis thereafter. The respondent also sought orders that the Costs Court allow fees of senior counsel in excess of scale in relation to both matters.
By written submissions dated 9 June 2022, the applicant opposed the making of the order sought by the respondent. He contended that there was no proper basis to make an award of indemnity costs in the principal matter or the costs matter, nor any basis for making an award of costs for senior counsel above scale. He did not otherwise oppose an ordinary costs order being made (on the standard basis)…

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.

Keep reading for free

Create a free CaseChat account to read Djordjevich v Rohrt [No 2] and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] VSCA 123
Decision Date: 24 June 2022

CaseChat Overview and Summary

The respondents, Hazeldene’s Chicken Farm Pty Ltd, appealed against an order for indemnity costs made in favour of the appellants, Djordjevich. The dispute arose out of an industrial relations matter. The respondents sought indemnity costs based on the appellants’ refusal to accept offers made in two Calderbank letters. The Supreme Court of Victoria heard the appeal.

The central legal issues for the court were whether the appellants’ case was hopeless, whether their refusal of the offers in the Calderbank letters was unreasonable, and whether it was appropriate to order indemnity costs. The court considered whether the appellants’ refusal of the offers was unreasonable and whether it was appropriate to make an order for indemnity costs. The court needed to determine if the refusal was unreasonable and if the refusal of the offers warranted an order for indemnity costs.

The court concluded that the appellants’ case was not hopeless, and their refusal of the offers was not unreasonable. The court found that the respondents had not established the appellants’ case was hopeless. The court further held that the refusal of the offers was not unreasonable, as the respondents had not demonstrated that the refusal was unreasonable. The court also noted that it was inappropriate to make an order for indemnity costs as it was not appropriate to make an order directing fees in excess of scale. The court applied the decision in Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority [No 2] (2005) 13 VR 435.

The court dismissed the respondents’ appeal against the indemnity costs order. The court held that the refusal of the offers was not unreasonable, and it was inappropriate to make an order for indemnity costs. The court concluded that the refusal of the offers was not unreasonable and that it was not appropriate to make an order for indemnity costs. The appeal was dismissed, and the indemnity costs order was upheld.

Orders