Maple v Derino Pty Ltd - [2002] VSC 499

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

VALUATION, COMPENSATION & PLANNING LIST

No. 7873 of 2001

JOHN MAPLE

Plaintiff

VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

First Defendant

and

DERINO PTY LTD (ACN 060 727 362) and IMPACT SHOP FITTING PTY LTD (ACN 061 939 240)

Second Defendants

and

MONASH CITY COUNCIL

Third Defendant

---

JUDGE:	Balmford J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 November 2002
DATE OF JUDGMENT:	20 November 2002
CASE MAY BE CITED AS:	Maple v Derino and Impact Shop Fitting
MEDIUM NEUTRAL CITATION:	[2002] VSC 499

---

COSTS – planning permit – appeal from the Victorian Civil and Administrative Tribunal – leave to appeal unopposed – proceeding adjourned pending new permit application – appeal withdrawn – defendants not entitled to an indemnity certificate under the Appeal Costs Act 1998 – the application for leave to appeal not inappropriate – the defendants pay the plaintiff’s costs of the application for leave to appeal – inappropriate for the plaintiff to contest the adjournment application – plaintiff to pay the defendants’ costs of the application for an adjournment
Appeal Costs Act 1998 – sections 3, 4
Appeal Costs Funds Act 1964 – sections 2, 13(1)
Supreme Court Act 1986 – section 24(1)
Supreme Court (General Civil Procedures) Rule 1996 – Rule 63.15

Pickford v Incorporated Nominal Defendant [1981] VR 583
Sanofi v Parke Davis Pty Ltd [No 1] (1982) 149 CLR 147
Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C Taylor	Russell Kennedy
For the Second Defendants	Mr A Finanzio	Jerrard and Stuk

HER HONOUR:

Introduction

The background to these proceedings may be briefly set out. The second defendants (“the defendants”) constructed two units (“the development”) at 10 Lemana Crescent, Mount Waverley, next door to the residence of the plaintiff. A planning permit for the construction of the development had been granted by the first defendant (“the Tribunal”) on 18 February 2000. However, when construction was completed it transpired that there were various minor inconsistencies between the plans approved by the Tribunal, the plans endorsed by the third defendant (“the Council”) as responsible authority on the grant of the planning permit, the plans attached to the building permit, and the development as built. The plaintiff deposed that the development overlooked parts of his property and that he had brought proceedings before the Tribunal for an enforcement order under section 114 of the Planning and Environment Act 1987 (“the P & E Act”), requiring the development to be constructed in accordance with the plan approved by the Tribunal. He further deposed that he had done this because the Council had not taken steps to enforce the terms of the planning permit which he considered it should have done; no doubt having in mind the obligation imposed on the Council by section 14 of the P & E Act to administer and enforce the relevant planning scheme.

On 7 September…

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.

Keep reading for free

Create a free CaseChat account to read Maple v Derino Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2002] VSC 499
Decision Date: 20 November 2002

CaseChat Overview and Summary

The case of Maple v Derino Pty Ltd involved a dispute between the plaintiff, Maple, and the defendants, Derino Pty Ltd, concerning a planning permit. The matter was heard in the Supreme Court of Victoria, which had jurisdiction over the case due to the financial implications of the appeal. The initial decision was made by the Victorian Civil and Administrative Tribunal, and the plaintiff appealed to the Supreme Court.

The primary legal issues in the case were whether the defendants were entitled to an indemnity certificate under the Appeal Costs Act 1998, and what the appropriate costs order should be for the proceedings. The plaintiff argued that the application for leave to appeal was not inappropriate, and therefore, the defendants should not be entitled to an indemnity certificate. Conversely, the defendants sought an indemnity certificate and argued that the adjournment of the appeal should result in them being awarded costs.

The court found that the application for leave to appeal was not inappropriate, and thus, the defendants were not entitled to an indemnity certificate under the Appeal Costs Act 1998. The plaintiff was ordered to pay the defendants' costs for the application for leave to appeal, while the defendants were ordered to pay the plaintiff's costs for the adjournment application. The court considered it inappropriate for the plaintiff to contest the adjournment application, and thus, the defendants were not entitled to costs for that part of the proceedings. The court concluded that the plaintiff should pay the defendants' costs for the adjournment application.

In summary, the court ruled that the defendants were not entitled to an indemnity certificate under the Appeal Costs Act 1998, and ordered that the plaintiff pay the defendants' costs for the application for leave to appeal, while the defendants were to pay the plaintiff's costs for the adjournment application. This decision was based on the court's interpretation of the relevant legislation and case law.

Orders