Kyne v Brandrick & Associates Pty Ltd - [2025] VSCA 17

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2023 0127

PETER FRANCIS KYNE	Applicant
v
GERARD BRANDRICK & ASSOCIATES PTY LTD (ACN 079 074 061)	Respondent

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JUDGES:	NIALL CJ, McLEISH and KENNEDY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	29 November 2024
DATE OF JUDGMENT:	28 February 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 17
JUDGMENT APPEALED FROM:	[2023] VCC 1895 (Judge Burchell)

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COSTS – Non-party costs order – Where director of builder gave instructions to file notice of contribution against co-defendant architect – Builder insolvent – Non-party costs order made against director on basis that discretion in Knight v FP Special Assets Ltd (1992) 174 CLR 178 enlivened – Whether judge erred in finding that director played active role and held sufficient interest in relation to contribution proceeding – Leave to appeal granted – Appeal allowed.

County Court Act 1958, s 78A.

Knight v FP Special Assets Ltd (1992) 174 CLR 178; Gdanski v Palms Court Management Pty Ltd [2017] VSCA 348, considered; House v The King (1936) 55 CLR 499; Moore (a pseudonym) v The King (2024) 419 ALR 169, applied.

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Counsel
Applicant:		Mr R Andrew KC with Mr D McAloon
Respondent:		Mr JAF Twigg KC with Ms A Mobrici
Solicitors
Applicant:	Strongman & Crouch
Respondent:	Sparke Helmore Lawyers

NIALL CJ
MCLEISH JA
KENNEDY JA:

The applicant was a director and shareholder of Tugnotion Pty Ltd (‘the builder’). The builder was a small private company engaged in building contractor works in the Echuca area. In May 2019, Donald Oberin (‘Oberin’)[1] commenced proceedings against the builder and Gerard Brandrick & Associates (‘the architect’), in the County Court, in relation to what he alleged were defective building works carried out on a hotel in Echuca. The respondent was the architect and superintendent for the works.
[1]Andrew John McGlone was subsequently appointed to represent Oberin’s estate after Oberin’s death.
On 19 June 2023, the trial judge gave judgment for the plaintiff against the builder and dismissed a notice of contribution filed by the builder on 14 July 2022 against the architect. She also ordered the builder to pay both the plaintiff’s and the architect’s costs of the proceeding on the standard basis unless a party sought a different costs order.
By summons filed on 8 August 2023, the architect applied for a non-party costs order against the applicant in circumstances where the builder had recently been placed into liquidation (on 13 July 2023). By orders made on 30 October 2023, the judge ordered that the applicant pay the architect’s costs of the proceeding from 14 July 2022, as well as its costs of the application for the non-party costs order (‘the non-party costs order’).
The applicant seeks leave to appeal the non-party costs order. The proposed ground of appeal is that the court ‘misdirected itself in the exercise of its discretion to make a personal costs order’ by:
(a)finding that the applicant had deliberately set out to defraud the architect from 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: [2025] VSCA 17
Decision Date: 28 February 2025

CaseChat Overview and Summary

The case of Kyne v Brandrick & Associates Pty Ltd involved a dispute where the plaintiff sought a non-party costs order against the defendant, a director of a builder, who had instructed the filing of a notice of contribution against a co-defendant architect. The builder was subsequently declared insolvent. The matter was heard in the County Court of Victoria. The core issue before the court was whether the judge correctly exercised the discretion under section 78A of the County Court Act 1958 to make a non-party costs order against the director, given the director's active involvement in the contribution proceeding and their sufficient interest in the matter.

The court examined the principles laid out in Knight v FP Special Assets Ltd, which provide that a non-party costs order can be made if the court considers it just to do so. The judge found that the director played an active role in the contribution proceeding and held a sufficient interest, thereby justifying the costs order. This decision was influenced by precedents such as Gdanski v Palms Court Management Pty Ltd, House v The King, and Moore (a pseudonym) v The King. The court held that the judge's findings were not erroneous, as the director's actions and interests aligned with the statutory criteria for such an order. Consequently, leave to appeal was granted, but the appeal was ultimately dismissed, affirming the original decision of the judge.

Orders