Jender v Flood - [2020] VSC 342

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2019 04873

JENDER PTY LTD (FORMERLY KNOWN AS DAVIS GLASS PTY LTD) (ACN 006 612 577)	Plaintiff
v
FLOOD EMERGENCY SERVICES GROUP PTY LTD (ACN 166 955 193)	First Defendant
MAGISTRATES’ COURT OF VICTORIA	Second Defendant

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JUDGE:	Keith JR
WHERE HELD:	Melbourne
DATE OF HEARING:	16 April 2020
DATE OF JUDGMENT:	10 June 2020
CASE MAY BE CITED AS:	Jender v Flood
MEDIUM NEUTRAL CITATION:	[2020] VSC 342

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COSTS – Refusal of stay of execution of orders of the Magistrates’ Court – Issue as to costs – Should costs be reserved and determined at hearing of the originating motion – Costs a matter of discretion for the Court per s 24 Supreme Court Act 1986 – Discretion to be exercised judicially and not capriciously - Purposes of costs to compensate party in whose favour the order is made, not to punish the party against whom it is made – Costs to reflect justice of the situation – Appropriate time to consider costs is at conclusion of proceeding, following determination of merits of the originating motion – Future conduct of parties may be relevant to overall costs of the proceeding – Parties submissions regarding costs surprising in light of the low quantum of the judgment made by the Magistrates’ Court of Victoria – Costs reserved.

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APPEARANCES:	Counsel	Solicitors
Mr J Lipinski via telephone for the Plaintiff
Mr R Watson-Jones via telephone for the First Defendant

JUDICIAL REGISTRAR:

On 16 April 2020 I heard submissions on an urgent summons filed in this proceeding by the plaintiff on 9 April 2020. The Summons sought two orders. The first order sought was for a stay of execution of orders of the Magistrates’ Court the subject of this appeal. The second order sought was for leave to amend the originating motion to seek relief in different terms.

The application for a stay was referred to me for hearing and determination by order of Daly AsJ made on 15 April 2020 and pursuant to Order 84.04 of the Supreme Court (General Civil Procedure) Rules 2015. The application for leave to amend has not been the subject of a referral.

On 16 April 2020 I refused to stay enforcement of the Magistrates Court orders. I reserved costs of the application for a stay. Both parties have filed submissions in relation to costs.

I did not, on 16 April 2020, provide reasons for my decision to refuse the stay. The hearing was conducted by telephone. The notes made of the reasons for my decision are now provided as an attachment to this ruling. They are intended to be in the nature of ex tempore remarks for my decision to refuse the stay. The issues are relevant to this ruling as to costs.

The plaintiff submits the costs be reserved and determined at the hearing of the originating motion. Written submissions were filed in support…

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: [2020] VSC 342
Decision Date: 10 June 2020

CaseChat Overview and Summary

In the matter of Jender v Flood, the respondent sought a stay of execution of orders made by the Magistrates' Court of Victoria. The nature of the dispute involved an issue regarding costs, specifically whether the costs should be reserved and determined at the hearing of the originating motion. The matter was heard in the Supreme Court of Victoria, where the Court was required to decide on the appropriate handling of costs in light of the parties' submissions.

The legal issues at hand centred on the appropriate exercise of the Court's discretion under section 24 of the Supreme Court Act 1986. The Court needed to determine whether the decision to reserve costs and determine them at the conclusion of the proceeding, following the determination of the merits of the originating motion, was appropriate. The Court also considered the purposes of costs, which are to compensate the party in whose favour the order is made, rather than to punish the party against whom it is made. The Court acknowledged that the costs should reflect the justice of the situation and be determined at an appropriate time, which is typically at the conclusion of the proceeding.

The Court exercised its discretion judicially, taking into account the low quantum of the judgment made by the Magistrates’ Court and the surprising nature of the parties' submissions regarding costs. The Court noted that the future conduct of the parties could be relevant to the overall costs of the proceeding. Ultimately, the Court decided to reserve costs, indicating that they would be determined at the conclusion of the proceeding, following the determination of the merits of the originating motion. This decision was made to ensure that the costs reflected the justice of the situation and were not determined in a capricious manner.

The Court did not make any final orders regarding costs at the time of the decision, reserving the matter for determination at a later stage.

Orders