Kenny v Gippsreal Ltd (No 2) - [2015] VSC 737

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 PTY LTD & ORS	Defendant

S CI 2011 04416

ACTION CYCLES PTY LTD (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

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JUDGE:	VICKERY J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 SEPTEMBER 2015
DATE OF JUDGMENT:	18 DECEMBER 2015
CASE MAY BE CITED AS:	KENNY & ANOR v GIPPSREAL LTD (No 2)
MEDIUM NEUTRAL CITATION:	[2015] VSC 737

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PRACTICE AND PROCEDURE – Applications for costs against lawyers for alleged breaches of overarching obligations – ss 29, 30, 31 Civil Procedure Act 2010 (the ‘Act’) – Application statute barred buy operation of s 30 of the Act - Applications pursuant to Rule 63.23 of the Supreme Court (General Civil Procedure) Rules 2015, that the Solicitors and the Barrister pay a party’s costs of the proceeding – Summary dismissal of applications pursuant to s 63 of the Act – No real prospect of success - Whether Deed of Settlement executed by parties released and discharged a Barrister as agent of a party from costs orders being made against her.

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APPEARANCES:	Counsel	Solicitors
For the Barrister	P B Murdoch QC with D A Klempfner of Counsel	DLA Piper Australia
For the Solicitors	A J Golding of Counsel	Colin Biggers & Paisley
For Gippsreal	J L Evans of Counsel	Oakleys Legal

HIS HONOUR:

Background

There are two proceedings which give rise to the present applications before the Court: S CI 2011 4416 (the ‘the 2011 Proceeding’) and S CI 2012 2626 (the ‘2012 Proceeding’).

In this part of both proceedings two issues arise for determination:

1. The first question (the ‘the First Question’) is whether a party to legal proceedings before this Court, being Gippsreal Ltd (‘Gippsreal’), by reason of alleged delay in the making of applications for non-party cost orders against a barrister (the ‘Barrister’) and an instructing firm of solicitors (the ‘Solicitors’) in respect of proceedings conducted by them on behalf of Action Cycles Pty Ltd and others (the ‘Action Cycles parties’) against Gippsreal (the ‘Non-Party Cost Application’), is entitled to pursue costs and/or compensation pursuant to r 63.23 of the of the Supreme Court (General Civil Procedure) Rules 2015 (the ‘Rules’), where it is further alleged that the delay in making the applications results in a contravention of the overarching obligations prescribed by the Civil Procedure Act 2010 (Vic) (the ‘CPA’);

2. The second question (the ‘Second Question’) is whether the Non-Party Cost Application made by Gippsreal as against the Barrister should, in any event, be dismissed by reason of the construction of a Deed of Settlement executed by the…

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: [2015] VSC 737
Decision Date: 18 DECEMBER 2015

CaseChat Overview and Summary

Kenny initiated proceedings against Gippsreal Ltd seeking costs against the respondents' lawyers for alleged breaches of overarching obligations under sections 29, 30, and 31 of the Civil Procedure Act 2010. The respondents sought the dismissal of these applications on the basis that they were statute-barred under section 30 of the Act. The court was required to determine whether the Deed of Settlement executed by the parties had released and discharged the barrister as the agent of a party from any liability to pay costs orders against her.

The court dismissed the applications as having no real prospect of success. The Deed of Settlement did not operate to release or discharge the barrister as an agent of the party from liability to pay costs. The court found that the Deed did not expressly release or discharge the barrister from liability and that there was no implication that it did. The court also found that the applications were statute-barred under section 30 of the Act.

Kenny’s applications for costs were dismissed. The court held that there was no real prospect of success and that the applications were statute-barred. The court made no orders as to costs.

Orders