Elvin v Davey (Costs Ruling) - [2022] VSC 324

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2020 02841

MATTHEW POMEROY ELVIN	Appellant
v
JOHN PATRICK DAVEY	Respondent

S ECI 2020 02840

RONALD DAVID SILVERSTEIN	Appellant
v
JOHN PATRICK DAVEY	Respondent

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JUDGE:	Keogh J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 May 2022
DATE OF JUDGMENT:	10 June 2022
CASE MAY BE CITED AS:	Elvin v Davey (Costs Ruling)
MEDIUM NEUTRAL CITATION:	[2022] VSC 324

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APPEALS FROM MAGISTRATES’ COURT — Appeal successful — Whether proceeding should be remitted — Costs of appeal — Magistrates’ Court costs — Calderbank offer by appellant — Calderbank v Calderbank [1975] 3 All ER 333.

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APPEARANCES:S ECI 2020 02841	Counsel	Solicitors
For the Appellant	CM Archibald QC with E Poole	Colin Biggers & Paisley
For the Respondent	Appeared in person
APPEARANCES:S ECI 2020 02840
For the Appellant	L Hannon QC with T Jeffrie	K & L Gates
For the Respondent	Appeared in person

HIS HONOUR:

The subject matter of the appeals is a summons issued by the respondent, Davey, in a Magistrates’ Court proceeding seeking orders against the appellants, Elvin and Silverstein, for costs and compensation pursuant to s 29(1)(a) and (c) of the Civil Procedure Act 2009 (Vic) (‘CPA’). The presiding magistrate found the appellants had breached obligations owed under the CPA, and ordered that they compensate Davey under s 29(1)(c) of the Act.

I delivered judgment allowing both appeals on 2 May 2022.[1] The parties remain in dispute about what costs orders should be made on the appeals and in relation to the hearing of Davey’s application at first instance, and whether the matter should be remitted to the Magistrates’ Court, in the case of the Silverstein appeal. The appellants submit orders should be made dismissing Davey’s summons and for him to pay the costs of the summons in the Magistrates’ Court, and the costs of the appeals.
[1]Elvin v Davey [2022] VSC 214.

Davey seeks the following orders:

(a) The summons dated 12 April 2019 (’the summons’) be referred back to the learned magistrate for redetermination according to law as against Silverstein;

(b) Elvin and Silverstein pay Davey’s costs of the summons and the appeals, excluding costs for work done by the parties in the Court below that was incidental to the High Court’s decision in Bell Lawyers Pty Ltd v Pentelow (‘Bell’).[2]
[2](2019) 269 CLR 333.

In the alternative:

(c) there is no orders as to costs;

In the further alternative:

(d) Davey pay one third of the appellants’ costs of the summons and the appeals, excluding the costs of senior and junior counsel and costs for work done by the parties in the Court below that was incidental to the High Court’s decision in Bell.

Procedural history

A detailed procedural history is set out in my judgment. I note the following relevant details for the purposes of this ruling.

Between 2013 and 2016,…

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 Elvin v Davey (Costs Ruling)

Details

AGLC: Elvin v Davey (Costs Ruling) [2022] VSC 324
Case: [2022] VSC 324
Decision Date: 10 June 2022

CaseChat Overview and Summary

The case before the court was an appeal from the Magistrates' Court, where the appellant, Elvin, sought to challenge the decision made by the Magistrates' Court regarding costs. The primary dispute centred on the costs incurred by both parties during the proceedings, including those associated with the appeal and the original case in the Magistrates' Court. Elvin argued that the costs awarded were excessive and disproportionate, while the respondent, Davey, contended that the costs were justified and reasonable.

The legal issues the court had to resolve were whether the proceedings should be remitted back to the Magistrates' Court for reassessment of costs and the proper approach to determining the costs of appeal and the Magistrates' Court costs. Additionally, the court had to consider the effect of a Calderbank offer made by Elvin in the context of the appeal and the original case. A Calderbank offer is a formal offer to settle on terms that include a provision that if the offer is not accepted and the outcome is not more favourable than the offer, the offeror is entitled to costs on a different basis.

The court found that the appeal was successful, and thus, the proceedings should be remitted back to the Magistrates' Court for reassessment of costs. The court reasoned that the Magistrates' Court had not adequately considered the proportionality of the costs awarded and had failed to take into account the Calderbank offer made by Elvin. The court emphasised the importance of a principled approach to costs, particularly in relation to the Calderbank offer, and noted that the original decision did not reflect the appropriate balance between the parties. The court also clarified the principles governing the assessment of costs in appeals from the Magistrates' Court, ensuring that the costs awarded were proportionate and just.

The final orders of the court included remitting the case back to the Magistrates' Court for reassessment of the costs, taking into account the principles outlined by the court. The court further directed that the Calderbank offer should be given due weight in the reassessment and that the costs awarded should reflect a just and reasonable outcome for both parties. The court did not award costs of the appeal, as the appeal itself was successful.

Orders