Hopkins v Hopkins - [2015] VSC 50

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

S CI 2013 3772

JOHN HOPKINS	Plaintiff
v
JOSHUA HOPKINS	Defendant

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JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	15 October 2014
DATE OF JUDGMENT:	2 March 2015
CASE MAY BE CITED AS:	Hopkins v Hopkins (No. 2)
MEDIUM NEUTRAL CITATION:	[2015] VSC 50

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JUDICIAL REVIEW AND APPEALS – Appeal from VCAT under s 148 of the Victorian Civil & Administrative Tribunal Act 1998 (Vic) – Costs – Sections 109, 112, 113 and 114 of Victorian Civil & Administrative Tribunal Act 1998 (Vic) – Enquiry required to be made under s 112(3)(a) when determining whether a qualifying offer is more favourable than the orders of the Tribunal - Meaning of the phrase ‘the costs the Tribunal would have ordered at the time the offer was made’ – Metricon Homes Pty Ltd v Sawyer [2013] VSC 518 applied in part and distinguished in part – Applicability of principles in Calderbank v Calderbank (1975) 3 All ER 333 to settlement offers made in proceedings at VCAT.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr Peter Cahill
For the Defendant	Mr A Coote	Robertson O’Farrell McMahon

HER HONOUR:

On 9 July 2014, I handed down my reasons for decision upon an appeal brought by the plaintiff, Mr Hopkins Senior, against a decision of a member of the Victorian Civil and Administrative Tribunal (‘Tribunal’) in relation to the costs of a hearing before the Tribunal brought by him against his son, Mr Hopkins Junior, allowing the appeal on the basis of inadequate reasons.[1] I also determined that, since I was seized of the matter, and given the amounts at stake, I would allow the parties to file further evidence and make further submissions as to the appropriate order to be made in respect of the costs of the hearing below, rather than remit the matter to the Tribunal.
[1]See [2014] VSC 319.

The background as to the current application can be summarised as follows:

(a) Mr Hopkins Snr and Mr Hopkins Jnr are father and son. Mr Hopkins Jnr is, and has been, the owner of a number of properties in regional Victoria and Tasmania (‘properties’);

(b) after a falling out within the family, and correspondence between solicitors, Mr Hopkins Snr issued a proceeding in VCAT seeking, among other things, declarations, that he held a beneficial interest in three properties owned by Mr Hopkins Jnr, and an order that the properties be sold and half of the net proceeds be paid to him;

(c) the proceeding failed to settle at mediation, and proceeded to a two day hearing before the Tribunal (‘primary hearing’). Mr Hopkins Snr’s claim to a beneficial interest in the properties failed, but he was successful in obtaining compensation for payments made and work done by him with respect to the properties; and

(d) in a subsequent hearing (‘costs hearing’) the Tribunal Member heard submissions from both parties with respect to the costs of…

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] VSC 50
Decision Date: 2 March 2015

CaseChat Overview and Summary

In the case of Hopkins v Hopkins, the appellant challenged the costs decision of the Victorian Civil and Administrative Tribunal (VCAT). The dispute involved a family law matter where the respondent sought to have the costs of the proceedings assessed in their favour. The matter was appealed to the Supreme Court of Victoria, which exercised its judicial review powers under the Victorian Civil & Administrative Tribunal Act 1998 (Vic). The primary legal issues for the court to determine were the interpretation of certain sections of the VCAT Act, specifically sections 109, 112, 113, and 114, and whether the principles in Calderbank v Calderbank (1975) 3 All ER 333 applied to settlement offers made in proceedings at VCAT.

The court examined the phrase ‘the costs the Tribunal would have ordered at the time the offer was made’ and considered the case of Metricon Homes Pty Ltd v Sawyer [2013] VSC 518, applying it in part and distinguishing it in part. The court concluded that the VCAT must undertake an enquiry under s 112(3)(a) to determine if a qualifying offer is more favourable than the orders of the tribunal, taking into account the costs the tribunal would have ordered at the time the offer was made. The court also addressed the applicability of the Calderbank principles to settlement offers in VCAT proceedings, finding that these principles could be relevant in assessing costs where a party has made an offer that is ultimately accepted by the other party.

The court found that the tribunal had not properly applied the relevant statutory provisions and principles in determining the costs. As a result, the appeal was allowed, and the matter was remitted back to VCAT for reconsideration of the costs. The court further directed that VCAT consider the principles in Calderbank when determining the appropriate costs order in light of the offer and acceptance. This decision underscores the importance of a proper analysis of costs in VCAT proceedings, ensuring that tribunals adhere to the statutory framework and relevant legal principles.

Orders