Legal Research
Cases
Kenny v Gippsreal Ltd

Kenny v Gippsreal Ltd

Case [2015] VSC 284 18 June 2015

Civil Litigation & Procedure

No judgment structure available for this case.

Type to search within this case.

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

S CI 2015 01489

CAROLINE MAJELLA KENNY	Plaintiff
v
GIPPSREAL LTD (ACN 076 779 630)	Defendant

S ECI 2015 000120

IAN SYMONDS & ASSOCIATES	Plaintiff
v
GIPPSREAL LTD (ACN 076 779 630)	Defendant

S CI 2012 02626

GIPPSREAL LTD (ACN 076 779 630)	Plaintiff
v
ACTION CYCLES and ORS	Defendant

S CI 2011 04416

ACTION CYCLES (Receivers and managers appointed)	Plaintiff
v
DAVID ANTHONY ROSS (in his capacity as receiver and manager of Action Cycles Pty Ltd (receivers and managers appointed)	Defendant

---

JUDGE:	VICKERY J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 May 2015
DATE OF JUDGMENT:	18 June 2015
CASE MAY BE CITED AS:	Kenny & Anor v Gippsreal Ltd
MEDIUM NEUTRAL CITATION:	[2015] VSC 284

---

PRACTICE AND PROCEDURE – Applications for costs and compensation against lawyers for alleged breaches of overarching obligations – Civil Procedure Act 2010 (the ‘Act’) ss 28, 29, 30 and 31 – Meaning of ‘finalisation’ s 30(2) of the Act – Non-compliance with time bar in s 30(2) of the Act – Section 29 applications under the Act for costs and compensation against lawyers set aside – Subpoenas addressed to lawyers – Whether served a legitimate forensic purpose – Validity of subpoenas considered – Subpoenas upheld.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff (Barrister)	P B Murdoch QC with D A Klempfner of counsel	DLA Piper Australia
For the Plaintiff (Solicitors)	C Jones, solicitor	Colin Biggers & Paisley
For the Defendant (Gippsreal)	J L Evans of counsel	Oakleys Legal

HIS HONOUR:

In this part of the proceedings, two issues arise for determination:

1.First, whether a party to legal proceedings before this Court, Gippsreal Ltd (‘Gippsreal’), by reason of the timing of the making of its applications, is entitled to pursue costs and/or compensation pursuant to s 29 of the Civil Procedure Act 2010 (the ‘CPA’) from a barrister and an instructing solicitor in respect of proceedings conducted by them where it is alleged that they have contravened the overarching obligations prescribed by the CPA; and
2.Second, whether subpoenas issued by Gippsreal for the production of documents directed to the barrister and the instructing solicitor, seeking documents in support of its applications for costs and/or compensation, should be permitted to stand or should be set aside.

Background

I accept the following facts and documents relevant to the matters presently before the Court:

1.Between September 2011 and June 2012, The Barrister acted at various times for Darren Gellie, Lorelle Gellie and Action Cycles Pty Ltd (the ‘Action Cycles parties’) in the 2011 Proceeding and the 2012 Proceeding. Essentially, the proceedings centred upon allegations made by the Action Cycle parties that deeds of settlement which they had entered into with Gippsreal in settlement of other matters were unenforceable and should be set aside. The underlying causes of action in the 2011 Proceeding and the 2012 Proceeding are not relevant for present purposes
2.Between 26 April 2012 and 10 July 2012, the Solicitors acted…

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.

Continue reading Kenny v Gippsreal Ltd

Details

AGLC: Kenny v Gippsreal Ltd [2015] VSC 284
Case: [2015] VSC 284
Decision Date: 18 June 2015

CaseChat Overview and Summary

Kenny commenced proceedings against Gippsreal Ltd, seeking compensation for alleged breaches of overarching obligations by the respondent’s legal representatives. The matter was heard in the Supreme Court of Victoria. The applicant alleged that the respondent's lawyers had breached their overarching obligations under the Civil Procedure Act 2010 (Vic), and sought costs and compensation against the respondent’s lawyers pursuant to sections 28, 29, 30, and 31 of the Act. The primary legal issue before the court was whether the applicant’s applications for costs and compensation against the respondent’s lawyers were validly brought, given the time constraints imposed by section 30(2) of the Act. The court also had to determine whether the subpoenas issued to the respondent’s lawyers were served for a legitimate forensic purpose.

The court found that the applicant's applications for costs and compensation were not brought within the time bar specified in section 30(2) of the Act, and were therefore invalid. The court noted that the meaning of 'finalisation' under the Act was a matter of legislative interpretation, and that the time bar in section 30(2) was mandatory and could not be extended by the court. The court also found that the subpoenas issued to the respondent’s lawyers were served for a legitimate forensic purpose, and were therefore valid. The court held that the subpoenas were not a punishment for the lawyers’ alleged breaches, but were instead a necessary tool for the court to obtain information and evidence relevant to the proceedings. The court rejected the respondent’s argument that the subpoenas were a collateral attack on their lawyers, and held that the subpoenas were a legitimate means of enforcing the court’s jurisdiction.

The Supreme Court set aside the applicant’s applications for costs and compensation against the respondent’s lawyers, and upheld the subpoenas issued to the respondent’s lawyers. The court did not make any orders for costs against the applicant.

Orders