Maxcon Constructions Pty Ltd v Vadasz & Ors - [2019] HCATrans 210

[2019] HCATrans 210

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A17 of 2017

B e t w e e n -
MAXCON CONSTRUCTIONS PTY LTD
Appellant
and
MICHAEL CHRISTOPHER VADASZ (TRADING AS AUSTRALASIAN PILING COMPANY)
First Respondent
ADJUDICATE TODAY PTY LTD
Second Respondent
CALLUM CAMPBELL
Third Respondent

KEANE J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO SYDNEY AND MELBOURNE

ON MONDAY, 21 OCTOBER 2019, AT 9.30 AM

____________________

MR M. CHRISTIE, SC: May it please your Honour, I appear with my learned friend, MR D.P. HUME, for Mr Vadasz. (instructed by O’Loughlins Lawyers)

MR M.J. GALVIN, QC: May it please the Court, I appear for Maxcon. (instructed by Diakou Faigen)

HIS HONOUR: Yes, Mr Christie.

MR CHRISTIE: Your Honour, I move on the summons dated 24 July 2019.

HIS HONOUR: Gentleman, can I just mention I have read the summons filed 24 July. I have read the affidavit of Stephen Peter White also filed on 24 July. I have read the submissions of the appellant dated 29 August 2019 and the submissions of the first respondent dated 27 September 2019. So, you can go straight to your points, Mr Christie.

MR CHRISTIE: May it please the Court. Your Honour, we seek an order that the appellant, Maxcon, pay Mr Vadasz’s assessed costs of the High Court proceedings together with interest that has accrued since the date of the certificate of taxation. In effect, your Honour, the proposed order is an order requiring performance of the undertaking given to the High Court by Maxcon at the special leave application on 12 May 2017. We also seek an order for the costs of this application on an indemnity basis for reasons which I will come to.

I appreciate that your Honour has read Mr White’s affidavit so I will just make a couple of brief points about salient issues that arise in that affidavit, if your Honour does not mind. Your Honour will appreciate from that affidavit that for some time now Maxcon has foreshadowed that it has a claim against Mr Vadasz. I would only point out one instance amongst several in the evidence of that and if I could ask your Honour to go to page 82 of Mr White’s affidavit ‑ or should I say page 81. Your Honour will see a letter from Bridges Lawyers who state that they acted as the Sydney agent for Maxcon. When your Honour turns to the next page, which is page 82, your Honour will see at paragraph 5:

In addition, we are instructed that our client intends to imminently commence separate Court proceedings against your client ‑

Then, it refers to the two amounts claimed in paragraphs (a) and (b) which total about $69,000. The reason I draw this to your Honour’s attention is that this was communicated to my client well before the special leave application and it is those two claims in…

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 Maxcon Constructions Pty Ltd v Vadasz & Ors

Details

AGLC: Maxcon Constructions Pty Ltd v Vadasz & Ors [2019] HCATrans 210
Case: [2019] HCATrans 210
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an application by the first respondent, Mr Vadasz, seeking an order that the appellant, Maxcon Constructions Pty Ltd, pay Mr Vadasz's assessed costs of High Court proceedings, together with accrued interest. These costs arose from Mr Vadasz successfully resisting Maxcon's appeal to the High Court, which had been dismissed on 14 February 2018. The dispute centred on Maxcon's refusal to pay the certified costs, despite having given an undertaking to do so as a condition for the grant of special leave to appeal.

The primary legal issue before the Court was whether Maxcon's undertaking to pay Mr Vadasz's costs of the appeal was absolute, or if it could be qualified by Maxcon's assertion of offsetting claims against Mr Vadasz, which were the subject of separate, pending proceedings. The Court was also required to consider whether Maxcon's conduct in resisting payment warranted an order for indemnity costs for Mr Vadasz's application.

The Court reasoned that the undertaking given by Maxcon was categorical and was the price for the grant of special leave to appeal. It was intended to protect Mr Vadasz from the expenses incurred due to Maxcon's appeal, and was not subject to any qualification that would permit Maxcon to deduct alleged offsetting claims. The Court found that Maxcon had taken the benefit of the grant of special leave and could not now seek to be relieved of the condition attached to it. Maxcon's assertion of offsetting claims was not a valid reason to avoid fulfilling its undertaking. Furthermore, the Court determined that Maxcon's position was unreasonable, necessitating the award of indemnity costs for Mr Vadasz's application.

Accordingly, the High Court ordered Maxcon to pay Mr Vadasz the sum of $183,717.07 within seven days, along with interest. Maxcon was also ordered to pay Mr Vadasz's costs of the application on an indemnity basis.

Orders