Krongold v Thurin [No 2] - [2023] VSCA 210

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2023 0032

KRONGOLD CONSTRUCTIONS (AUST) PTY LTD (ACN 103 839 149)	Applicant
v
DAVID THURIN & ORS [NO 2] (ACCORDING TO THE ATTACHED SCHEDULE)	Respondents

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JUDGES:	BEACH, McLEISH and NIALL JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	5 September 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 210

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PRACTICE AND PROCEDURE – Costs – Referral of questions by Trial Division to Court of Appeal – Costs of hearing and determination of referred questions – Parties enjoying mixed success – Costs awarded in favour of successful parties – No point of principle.

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Counsel
Applicant:	Mr JAF Twigg KC with Dr K Weston-Scheuber and Mr M Hosking
First and Second Respondents:	Mr MG Roberts KC with Dr CO Parkinson KC and Mr N Guenther
Third Respondent	Mr KJ Naish
Fourth Respondent	Mr PG Cawthorn KC with Mr AE Klotz
Solicitors
Applicant:	Krongold Group of Companies
First and Second Respondents:	Herbert Smith Freehills
Third Respondent	DLA Piper Australia
Fourth Respondent	Meridian Lawyers

BEACH JA
MCLEISH JA
NIALL JA:

On 24 March 2023, pursuant to s 17B of the Supreme Court Act1986, Stynes J referred three questions to this Court. On 17 August 2023, we answered those questions as follows:
Question 1
What is the effect of Justice Quigley’s order made on 13 December 2022 pursuant to s 77(3) of the Victorian Civil and Administrative Tribunal Act 1998 (as corrected on 15 December 2022), that VCAT proceeding BP715/2018 ‘be struck out and the matter referred to the Supreme Court of Victoria’ (the ‘Section 77 Order’)?
Answer: Subject to the answer to question 2, the effect of Quigley J’s order is to invoke the jurisdiction of the Supreme Court to hear and determine the referred matter, without the need for any further initiating process.
Question 2
Having regard to the answer in Question 1, is:
(a) Casper Architecture and Design Pty Ltd (ACN 078 809 604); and/or
(b) Swan Hardware & Staff Pty Limited (ACN 005 273 165),
a party to any proceeding in the Supreme Court of Victoria arising as a result of the Section 77 Order?
Answer: No.
Question 3
Having regard to the answer to Question 1, do sections 134 and/or 134A of the Building Act 1993 bar the Thurins’ claims against Krongold Constructions (Aust) Pty Ltd (ACN 103 839 149) and/or Casper Architecture and Design Pty Ltd?
Answer: No, with respect to the Thurins’ claims against Krongold Constructions (Aust) Pty Ltd (ACN 103 839 149); otherwise unnecessary to answer.[1]
[1]Krongold Constructions (Aust) Pty Ltd v Thurin [2023] VSCA 191.
The parties have now filed submissions on costs. In summary, those submissions are as follows:
(1)Krongold submits that there should be no order as to costs, essentially because the questions referred to the Court of Appeal involved matters of public importance and the answers given by this Court will provide guidance to many litigants who are or who will be subject…

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 Krongold v Thurin [No 2]

Details

AGLC: Krongold v Thurin [No 2] [2023] VSCA 210
Case: [2023] VSCA 210
Decision Date: 5 September 2023

CaseChat Overview and Summary

In the case of Krongold v Thurin [No 2], the parties were involved in a dispute concerning costs related to the referral of questions by the Trial Division to the Court of Appeal. The dispute involved Krongold’s application for an indemnity certificate under section 19 of the Appeal Costs Act 1998, and the Thurins' application for a certificate. The Court of Appeal was tasked with determining whether any such certificates should be granted, as well as the allocation of costs between the parties.

The court had to decide whether Krongold, despite being unsuccessful in its application for an indemnity certificate, should be granted such a certificate under section 19 of the Appeal Costs Act 1998. The court also had to determine the allocation of costs between the parties, considering that each party had enjoyed varying degrees of success in the proceedings. The court had to balance the costs orders against Krongold, the Thurins, and Swan Hardware, as well as determine whether any orders should be made disposing of Krongold’s proceeding.

The court found that Krongold was not entitled to an indemnity certificate under section 19 of the Appeal Costs Act 1998, as the court was not persuaded that it was appropriate to grant such a certificate in this case. The court concluded that Krongold pursued the issues in its own interests and was unsuccessful, and while section 19 provides for a certificate in favour of a moving party even in such circumstances, the court was not persuaded that it was appropriate in this case. The court also found that the Thurins’ application for a certificate was moot in light of the costs orders it would make against Krongold. The court ordered that Krongold pay the Thurins' costs of the referred questions, the Thurins pay Swan Hardware’s costs of the referred questions, and the Thurins pay one third of Casper’s costs of the referred questions. The court made no other order as to costs and did not make any order disposing of Krongold’s proceeding. Finally, the court did not grant Krongold an indemnity certificate under section 19(1) of the Appeal Costs Act 1998.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In relation to Krongold’s application for an indemnity certificate under s 19 of the Appeal Costs Act 1998, we are not persuaded that it is appropriate to grant any such certificate in this case. As we have said, Krongold pursued the issues in this matter in its own interests and has been unsuccessful.[4] While s 19 provides for a certificate in favour of a moving party even in those circumstances, we are not persuaded that is appropriate in this case. In light of the costs orders we will make against Krongold, the Thurins’ application for a certificate is moot.[4]No submission was made as to whether Krongold would be eligible for payment under that Act, by virtue of not being a corporation having a paid up share capital of $200,000 or more, or a subsidiary of such a corporation (s 35A(1)(a)).Conclusion We will make orders requiring Krongold to pay the Thurins’ costs of the referred questions; the Thurins to pay Swan Hardware’s costs of the referred questions; and the Thurins to pay one third of Casper’s costs of the referred questions. There will be no other order as to costs. Additionally, we will not make any order disposing of Krongold’s proceeding. Finally, we will not grant Krongold an indemnity certificate under s 19(1) of the Appeal Costs Act 1998.---

Ratio Decidendi

Legal Principle Established

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