Jason William Gann v Joseph Hosny - [2017] VSCA 318

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2017 0050

JASON WILLIAM GANN	Applicant
V
JOSEPH HOSNY	Respondent

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JUDGES:	SANTAMARIA, KAYE and ASHLEY JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	2 November 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 318

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PRACTICE AND PROCEDURE – Costs – Costs of application for leave to appeal – Where application for leave to appeal had no prospects of success – Where applicant failed to establish elements of alleged fraud and perjury – Where conduct of applicant impugned – Costs payable on indemnity basis – Supreme Court (General Civil Procedure) Rules 2015 r 64.38.

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APPEARANCES:	Counsel	Solicitors
On the papers

SANTAMARIA JA
KAYE JA
ASHLEY JA:

Brief procedural history

The respondent was the successful plaintiff in a common law proceeding heard and determined in the County Court. On 6 June 2012, following a seven-day trial, the respondent was awarded judgment in the sum of $325,000 (‘the damages judgment’).[1]
[1]Hosny v Victoria Racing Club [2012] VCC 661 (Judge Davis).

The applicant subsequently sought leave to appeal against the damages judgment, relevantly, on the ground that it had been procured by fraud on the part of the respondent of which the applicant had only recently become aware.

On 16 March 2015, this Court granted the applicant leave to appeal and allowed the appeal to the extent that the hearing and determination of the question whether the damages judgment had been procured by fraud be remitted for consideration by the County Court (‘the remittal appeal’).[2]
[2]Gann v Hosny [2015] VSCA 43 (Whelan and Ferguson JJA). On 12 December 2014, this Court granted the applicant an extension of time in which to apply for leave to appeal: Gann v Hosny [2014] VSCA 344 (Weinberg JA and Ginnane and Sloss AJJA).

On 12 April 2017, a judge in the County Court dismissed an application by the applicant to set aside the damages judgment on the ground that it had been procured by fraud.[3]
[3]Gann v Hosny [2017] VCC 402 (Judge Brookes).

On 20 October 2017, this Court refused the applicant leave to appeal from the decision made on 12 April 2017 to dismiss the application to set aside the damages judgment.[4] At the time of publishing its reasons, the Court directed the parties to file written submissions in relation to the costs of the application for leave to appeal.
[4]Gann v Hosny [2017] VSCA 303 (‘Reasons of 20 October 2017’).

The respondent now seeks orders, relevantly, that the applicant pay the costs of the respondent on an indemnity basis, including any reserved costs in respect of the remittal appeal and the present application for leave to appeal, and that the respondent be entitled to interest on the damages judgment and costs from the date of the damages judgment.

The remittal appeal and subsequent dismissal of the applicant’s claim

On 12 December 2014, this Court granted the applicant an extension of time in which to apply for leave…

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: [2017] VSCA 318
Decision Date: 2 November 2017

CaseChat Overview and Summary

The case of Jason William Gann v Joseph Hosny involved a dispute where Gann sought leave to appeal a decision from a lower court. The Supreme Court of Victoria was tasked with determining whether Gann was entitled to leave to appeal and, if not, whether he should be ordered to pay costs on an indemnity basis. The primary issue before the court was whether Gann's application for leave to appeal had any prospects of success, particularly in light of allegations of fraud and perjury. Additionally, the court had to consider whether Gann's conduct during the proceedings warranted an indemnity costs order.

The court found that Gann's application for leave to appeal lacked any reasonable prospect of success, as he had failed to establish the elements necessary to support his claims of fraud and perjury. The court further determined that Gann's conduct during the proceedings was impugned, warranting an indemnity costs order under Supreme Court (General Civil Procedure) Rules 2015 rule 64.38. The court concluded that the circumstances justified an order for indemnity costs, given the lack of merit in Gann's application and his questionable conduct.

The court ordered that Gann pay Hosny's costs of the application for leave to appeal on an indemnity basis. This order was made in accordance with the relevant procedural rules and was based on the court's findings regarding the prospects of success and the conduct of the parties involved. The decision underscored the importance of establishing a reasonable prospect of success for an appeal and highlighted the consequences of impugned conduct in legal proceedings.

Orders