Hopkins v Hopkins - [2014] VSC 319

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2013 3772

JOHN HOPKINS	Plaintiff
v
JOSHUA HOPKINS	Defendant

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JUDGE:	DALY AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	26 February 2014
DATE OF JUDGMENT:	9 July 2014
CASE MAY BE CITED AS:	Hopkins v Hopkins
MEDIUM NEUTRAL CITATION:	[2014] VSC 319

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JUDICIAL REVIEW AND APPEALS — Appeal from VCAT under s 148 of the Victorian Civil & Administrative Appeals Act 1998 (Vic) — Costs — Sections 109, 112, 113 and 114 of Victorian Civil & Administrative Appeals Act 1998 (Vic) — Adequacy of Reasons — Metricon Homes Pty Ltd v Sawyer [2013] VSC 518 considered — Applicability of principles in Calderbank v Calderbank (1975) 3 All ER 33 to settlement offers made in proceedings at VCAT — Remedy where sole error of law is inadequacy of reasons — Overarching obligations under Civil Procedure Act 2010 (Vic).

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

HER HONOUR:

The appellant, Mr John Hopkins (“Mr Hopkins Snr”), was the applicant in a Victorian Civil and Administrative Tribunal (“VCAT”) proceeding in which he made a number of claims against the respondent, his son, Mr Joshua Hopkins (“Mr Hopkins Jnr”). Mr Hopkins Snr claimed an interest in various properties in Tasmania and Bendigo of which Mr Hopkins Jnr was the registered proprietor, as well as compensation for various works said to have been done by him on some of those properties. Following a two day hearing in 2012, the Tribunal Member rejected Mr Hopkins Snr’s claims that he was entitled to a declaration that one or more of these properties were held on trust by Mr Hopkins Jnr on behalf of both parties by reason of a resulting trust or common intention constructive trust. However, he ordered that Mr Hopkins Jnr pay Mr Hopkins Snr the sum of $29,389 by reason of various payments made and works undertaken with respect to one of those properties. The Tribunal Member gave both parties liberty to apply with respect to the costs of the proceeding.

Both parties made an application in respect of costs. Mr Hopkins Snr sought an order that Mr Hopkins Jnr pay his costs of the proceeding up to and including 14 August 2012. Mr Hopkins Jnr applied for an order that Mr Hopkins Snr pay his costs from 14 August 2012 on a solicitor/client or indemnity basis, and that the parties otherwise bear their own costs.

The initial demand by Mr Hopkins Snr in respect of the claims which were the subject of the VCAT proceeding was made by a letter from his solicitors dated 2 November 2011. Following that time there was substantial correspondence between the solicitors for the parties which failed to resolve the dispute. Mr Hopkins Snr issued the VCAT proceeding on 4 June 2012. An unsuccessful mediation was held…

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: [2014] VSC 319
Decision Date: 9 July 2014

CaseChat Overview and Summary

The appeal arose from a decision made by the Victorian Civil and Administrative Tribunal (VCAT) regarding a dispute between the parties, Hopkins and Hopkins. The nature of the dispute involved the interpretation and application of various sections of the Victorian Civil & Administrative Appeals Act 1998 (Vic) and the Civil Procedure Act 2010 (Vic), particularly in relation to costs and the adequacy of reasons given by the tribunal. The appeal was brought under section 148 of the Victorian Civil & Administrative Appeals Act 1998 (Vic).

The primary legal issues before the court were whether the tribunal had provided adequate reasons for its decision, and whether the principles in Calderbank v Calderbank (1975) 3 All ER 33 were applicable to settlement offers made in proceedings at VCAT. The court was required to determine the proper remedy where the sole error of law was the inadequacy of reasons and to consider the overarching obligations under the Civil Procedure Act 2010 (Vic).

The court found that the tribunal had not adequately explained its decision, leading to an inadequacy of reasons. The court considered the case of Metricon Homes Pty Ltd v Sawyer [2013] VSC 518, which was instrumental in understanding the tribunal's obligations in providing reasons. The court also examined the applicability of the Calderbank principles to settlement offers in VCAT proceedings. Ultimately, the court concluded that the tribunal's error warranted the setting aside of its decision and the remittal of the matter back to VCAT for reconsideration. The court emphasised the importance of the overarching obligations under the Civil Procedure Act 2010 (Vic) in ensuring adequate reasons are provided.

The court ordered that the decision of VCAT be set aside, and the matter be remitted back to VCAT for reconsideration in light of the court's findings regarding the adequacy of reasons. The court did not order any costs be paid by either party in relation to the appeal.

Orders