ADMINISTRATIVE LAW – Victorian Civil and Administrative Tribunal – Jurisdiction – Orders judgments and declarations – Injunction – Whether VCAT possessed of jurisdiction to enjoin enforcement of costs order once made – Whether VCAT possessed of jurisdiction to declare costs recoverable pursuant to costs order reduced by recovery of settlement sums – Estoppel – Issue estoppel – Whether declaration made in excess of VCAT’s jurisdiction amounting to issue estoppel – Observations as to whether doctrine of issue estoppel applies to administrative tribunals – No determination of the issue sought by the parties – Costs – Whether displacement of indemnity rule or double recovery – Whether indisseverable lump sum settlement payment made in consideration of release of all claims and costs susceptible to presumptive proration between claims and costs – Appeal – Practice and procedure – New ground of appeal – Whether to permit to be argued because going to jurisdiction.
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Appearances:
Counsel
Solicitors
For the Appellant
Mr P J Riordan SC Mr A M Dinelli
DLA Phillips Fox
For the Respondent
Mr P B Murdoch QC Mr J D Pizer
Giannakopoulos Solicitors
NETTLE JA:
REDLICH JA:
This is an appeal from a judgment given in the Commercial and Equity Division refusing applications for an injunction to restrain the respondent (‘Riverwild’) from enforcing a costs order made in favour of Riverwild in the Victorian Civil and Administrative Tribunal (‘VCAT’) in a Domestic Building Act[1] proceeding (‘the VCAT building proceeding’) and a declaration that the costs order had been satisfied in whole or part as a result of the settlement sums paid by other respondents to the VCAT building proceeding.
Riverwild and others brought the VCAT building proceeding in VCAT against the appellant (‘Mr Morris’) as architect, and others in various capacities, for damages of $8.65 million alleged to have been suffered as a result of defects in the design and construction of a development known as ‘Woodsmoke’ at Falls Creek.
When the VCAT building proceeding was part heard, the parties settled all claims as follows:
a) On 30 July 2004, Riverwild accepted Mr Morris’s offer of settlement, made pursuant to s 112 of the VCAT Act,[2] to pay $1,400,000 to Riverwild together with Riverwild’s party and party costs in relation to their claims against Mr Morris.
b) On 3 August 2004, Riverwild entered into terms of settlement with the certifying engineer (Mr Holland) and his company (GHA Engineers Pty Ltd), pursuant to which Mr Holland and his company agreed to pay the sum…
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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AGLC
Morris v Riverwild Management Pty Ltd [2011] VSCA 283
Case
[2011] VSCA 283
Decision Date
CaseChat Overview and Summary
In the matter of Morris v Riverwild Management Pty Ltd, the parties were engaged in a dispute concerning costs recovery and jurisdiction within the Victorian Civil and Administrative Tribunal (VCAT). The respondent sought an injunction preventing the enforcement of a costs order made by VCAT, arguing that the costs should be reduced by settlement sums paid. The respondent also sought a declaration that the costs should be reduced by the settlement sums and argued for the application of issue estoppel to prevent the appellant from disputing the issue of costs recovery. The appellant argued that VCAT lacked jurisdiction to alter the costs order and that any declaration made in excess of VCAT's jurisdiction amounted to issue estoppel.
The central legal issues for the court to determine were whether VCAT possessed the jurisdiction to enjoin enforcement of the costs order once it had been made, whether VCAT had the jurisdiction to declare that the costs recoverable pursuant to the costs order should be reduced by the recovery of settlement sums, and whether the doctrine of issue estoppel applied to administrative tribunals. Additionally, the court had to consider whether the costs recovery could be prorated between claims and costs and whether the indemnity rule or double recovery could be displaced by such a settlement.
The court held that VCAT did not have the jurisdiction to enjoin the enforcement of the costs order once it had been made. Furthermore, VCAT did not have the jurisdiction to declare that the costs should be reduced by settlement sums. The court found that the doctrine of issue estoppel did not apply to administrative tribunals in this context. The court did not make a determination on the issue of costs recovery sought by the parties. Regarding the costs, the court held that the presumptive proration of the indisseverable lump sum settlement payment between claims and costs was susceptible to challenge. The court also held that the appeal was permissible because it went to the jurisdiction of the tribunal.
The court made no orders regarding the injunction, declaration, or issue estoppel. It held that the settlement payment should not presumptively be prorated between claims and costs. The appeal was allowed on the basis that it went to the jurisdiction of the tribunal.