Kukulka v Floatcast Technology Pty Ltd - [2021] VSC 107

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2018 02808

MICHAEL KUKULKA	Applicant
v
FLOATCAST TECHNOLOGY PTY LTD (ACN 141 030 882)	Respondent

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JUDGE:	FORBES J
WHERE HELD:	Melbourne
DATE OF HEARING:	5 February 2021
DATE OF JUDGMENT:	11 March 2021
CASE MAY BE CITED AS:	Kukulka v Floatcast Technology Pty Ltd
MEDIUM NEUTRAL CITATION:	[2021] VSC 107

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JUDICIAL REVIEW AND APPEALS – Application for leave to appeal from a decision of VCAT granting summary dismissal of claim for damages – Proceeding dismissed pursuant to Victorian Civil and Administrative Tribunal Act 1998 s 75 – Whether claim is frivolous, vexatious, misconceived or lacking substance – Error of law established – Tribunal erred in law by wrongly determining the summary dismissal of the proceeding on the balance of probabilities – The Tribunal erred in law by misstating the source of power to hear and determine a no case submission as one lying under s 75 – Distinction between entitlement to damages and recovery of loss and damage – Leave to appeal granted – Victorian Civil and Administrative Tribunal Act 1998, s 75, – Forrester v AIMS Corporation & Ors [2004] VSC 506 – Lay v Alliswell Pty Ltd [2001] VSC 384 – Protean (Holdings) Ltd v American Home Assurance Co [1985] VR 187 – Weber v Deakin University [2018] VSCA 53.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Levine	Matrix Legal
For the Respondent	Mr R Farhall	E C Legal Pty Ltd

HER HONOUR:

On 19 September 2017 the applicant commenced proceedings at the Victorian Civil and Administrative Tribunal (VCAT) against the respondent, seeking damages of $12,950 arising from a dispute over the supply of webhosting services.

He claimed that he engaged Floatcast to provide hosting services for 16 websites in 2015. He uploaded content to some of those websites. On 24 July 2017, the respondent suspended the service, denied him access and thereafter refused to return the uploaded content and data to Mr Kukulka. Not having backed up the information that was uploaded, the applicant incurred costs in reconstructing the web content in order to host the pages elsewhere and sought damages for that loss.

The applicant now seeks leave to appeal from three orders of VCAT. The first order on 29 August 2018 dismissed his claim (August order). The second was an order made on 12 October 2018 (October order) following a costs hearing that ordered Mr Kukulka pay the respondent’s costs on a standard basis on County Court scale and made timetabling orders for filing a breakdown of costs claimed and any objection thereto. The third order in November was that the costs be paid in the sum of $22,808.08 (November order). This was made on the basis of ‘there being no objection to the costs filed by the applicant’.

In fact the applicant had filed objections to the breakdown of costs. The respondent concedes…

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 Kukulka v Floatcast Technology Pty Ltd

Details

AGLC: Kukulka v Floatcast Technology Pty Ltd [2021] VSC 107
Case: [2021] VSC 107
Decision Date: 11 March 2021

CaseChat Overview and Summary

In the case of Kukulka v Floatcast Technology Pty Ltd, the applicant sought leave to appeal a decision of the Victorian Civil and Administrative Tribunal (VCAT) that granted summary dismissal of the applicant's claim for damages. The respondent opposed the application for leave to appeal, arguing that the application was frivolous, vexatious, or lacking in substance. The central issue for the court was whether the applicant's claim was frivolous, vexatious, misconceived, or lacking in substance, and whether an error of law had been established.

The court examined the grounds for the application for leave to appeal and found that the applicant had identified an error of law by the Tribunal. The Tribunal had wrongly determined the summary dismissal of the proceeding on the balance of probabilities. Additionally, the Tribunal had erred in law by misstating the source of its power to hear and determine a no case submission as one lying under section 75 of the Victorian Civil and Administrative Tribunal Act 1998. The court emphasised the distinction between entitlement to damages and the recovery of loss and damage.

In light of the error of law identified, the court granted the applicant leave to appeal. The court's decision was influenced by precedents such as Forrester v AIMS Corporation & Ors, Lay v Alliswell Pty Ltd, Protean (Holdings) Ltd v American Home Assurance Co, and Weber v Deakin University. The court considered the identified error of law and the potential merits of the applicant's appeal, finding that the application should not be dismissed as frivolous or vexatious.

The court ordered that the proceeding be dismissed pursuant to section 75 of the Victorian Civil and Administrative Tribunal Act 1998, but granted the applicant leave to appeal the decision of VCAT. This ruling underscores the importance of correctly identifying the legal basis for decisions and the potential consequences of such errors for parties involved in judicial review and appeal proceedings.

Orders