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Gippsreal Ltd v Kenny

Gippsreal Ltd v Kenny

Case [2016] VSCA 319 15 December 2016

Civil Litigation & Procedure

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2016 0023

GIPPSREAL LTD	Applicant
v
CAROLINE MAJELLA KENNY and IAN SYMONDS & ASSOCIATES	Respondents

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JUDGES:	WHELAN, PRIEST AND KYROU JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 November 2016
DATE OF JUDGMENT:	15 December 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 319
JUDGMENT APPEALED FROM:	Kenny v Gippsreal Ltd [No 2] [2015] VSC 737 (Vickery J)

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PRACTICE AND PROCEDURE – Application for costs against lawyers for opposing party under r 63.23 of Supreme Court (General Civil Procedure) Rules 2005 alleging no proper basis for commencement of proceedings, in breach of s 18 of Civil Procedure Act 2010 – Application made more than 2 years after proceedings finalised – Factors relevant to exercise of discretion under r 63.23 – Relevance of time limit in s 30 of Act – Delay inordinate and not satisfactorily explained – Principle of finality.

PRACTICE AND PROCEDURE – Judge erred in treating respondents’ application under s 29 of Civil Procedure Act 2010 for order dismissing applicant’s application under r 63.23 of Rules as being ‘akin’ to an application for summary judgment under s 63 of Act – Whether ‘no real prospect of success’ test in s 63 applicable – Factors relevant to exercise of discretion under s 29 – Civil Procedure Act 2010 ss 7, 8, 9, 10, 18, 25, 28, 29, 30, 31, 61, 62, 63.

PRACTICE AND PROCEDURE – Whether judge overlooked relevant evidence in exercising discretion to dismiss application under r 63.23 of Rules against lawyers – Whether judge’s reasons adequate – Judge erred – Court of Appeal exercised discretion under r 63.23 for itself on basis of all evidence before judge – Application under r 63.23 against lawyers dismissed – Leave to appeal granted but appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J L Evans	Oakleys Legal
For the First Respondent	Mr P B Murdoch QC with Mr D A Klempfner	DLA Piper Australia
For the Second Respondent	Ms A J Golding	Colin Biggers & Paisley

WHELAN JA
PRIEST JA
KYROU JA:

Introduction and summary

This is an application for leave to appeal against an order of a judge in the Trial Division that dismissed two summonses issued by the applicant on 22 December 2014 in which it sought orders under r 63.23 of the Supreme Court (General Civil Procedure) Rules 2005 (‘Rules’) requiring the respondents to pay the applicant’s costs in each of two proceedings which had been finalised on 7 August 2012.[1] The orders were sought against the first respondent in her capacity as counsel for the opposing parties in those proceedings, and the second respondent in its capacity as solicitors for the opposing parties.
[1]Kenny v Gippsreal Ltd [No 2] [2015] VSC 737 (‘Reasons’).

Rule 63.23 of the Rules relevantly provided:

63.23 Costs liability of lawyer
(1)Where a solicitor for a party, whether personally or through a servant or agent, has caused costs to be incurred improperly or without reasonable cause or to be…

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 Gippsreal Ltd v Kenny

Details

AGLC: Gippsreal Ltd v Caroline Majella Kenny and Ian Symonds and Associates [2016] VSCA 319
Case: [2016] VSCA 319
Decision Date: 15 December 2016

CaseChat Overview and Summary

Gippsreal Ltd brought an application against Kenny for costs incurred from Kenny's lawyers, pursuant to r 63.23 of the Supreme Court (General Civil Procedure) Rules 2005, alleging that the lawyers had no proper basis for commencing the proceedings in breach of s 18 of the Civil Procedure Act 2010. The application was made more than two years after the proceedings were finalised. The primary judge dismissed the application, finding that the delay was inordinate and not satisfactorily explained. Gippsreal Ltd appealed, contending that the judge erred in treating the respondents' application under s 29 of the Civil Procedure Act 2010 for an order dismissing the application as 'akin' to an application for summary judgment under s 63 of the Act, and that the judge overlooked relevant evidence in exercising the discretion to dismiss the application. The Court of Appeal found that the primary judge had correctly exercised his discretion to dismiss the application, and that the appeal should be dismissed. The Court noted that the primary judge had considered all relevant evidence and that the delay in making the application was significant. The Court also found that the primary judge had not overlooked any relevant evidence and that the judge's reasons were adequate. The Court granted leave to appeal but dismissed the appeal.

Orders