| 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…
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- Case
- [2015] VSC 50
- Decision Date
CaseChat Overview and Summary
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.
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Evidence
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Decision
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