Re Cappelleri (Ruling No 2) - [2022] VSC 711

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S CI 2017 00286

LEONIE CAPPELLERI (by her Litigation Guardian VINCENZO NICOLA CAPPELLERI)	First Plaintiff
VINCENZO NICOLA CAPPELLERI (as the Administrator of the Estate of FRANK CAPPELLERI, deceased)	Second Plaintiff
VINCENZO NICOLA CAPPELLERI	Third Plaintiff
v
DOMENICO CAPPELLERI	First Defendant
MARIO CAPPELLERI	Second Defendant
F&L PTY LTD (ACN 006187873)	Third Defendant
REGISTRAR OF TITLES	Fourth Defendant

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JUDGE:	Moore J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 October 2022
DATE OF RULING:	21 November 2022
CASE MAY BE CITED AS:	Re Cappelleri (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2022] VSC 711

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COSTS – Plaintiffs successful in interlocutory application – Where conduct of defendants warrants departure from usual position in relation to costs of interlocutory applications – Defendants’ opposition to summons not reasonably arguable – Defendants’ serious allegations against plaintiffs’ solicitors baseless – Defendants to pay plaintiffs’ costs of summons including reserved costs – Rule 63.20 of the Supreme Court (General Civil Procedure) Rules 2015.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Justin O’Bryan	Madgwicks
For the Defendants	Gerard Nash KC	Access Law

HIS HONOUR:

By summons dated 7 July 2022, the plaintiffs sought directions about the reception at trial of evidence from Leonie Cappelleri, the first named plaintiff.[1] Leonie had lost capacity and a litigation guardian had been appointed for her on 30 August 2021. The plaintiffs sought orders that Leonie’s evidence at trial be given by an affidavit sworn by her on 9 November 2020, and for her attendance at trial to be dispensed with.
[1]In the interests of clarity and without intending any disrespect, in this ruling I generally refer to the parties by their first names.

On 12 October 2022, I made orders in terms sought by the plaintiffs for the reasons set out in Re Cappelleri (Ruling No 1).[2]
[2][2022] VSC 561.

The plaintiffs now seek their costs of the summons, including reserved costs.

The defendants submit that the costs of the summons should be the parties’ costs in the proceeding, or alternatively, costs should be reserved to be determined after trial.

Rule 63.20 of the Supreme Court (General Civil Procedure) Rules 2015 (the Rules) provides that:

63.20   Interlocutory application
Where an interlocutory or other application is made in a proceeding and—
(a)       no order is made on the application; or
(b)       the order made is silent as to costs—
the costs are the parties' costs in the proceeding, unless the Court otherwise orders.

It is apparent that the general position established by r 63.20 is that the parties’ costs of an interlocutory application are to be the parties’ costs in the proceeding, unless the Court otherwise orders. Counsel for the plaintiffs submitted that the conduct of the defendants in relation to the summons justified the Court departing from the usual position. They submitted that the defendants unreasonably refused to proceed on the basis that Leonie’s evidence at trial be given by affidavit when…

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 Re Cappelleri (Ruling No 2)

Details

AGLC: Re Cappelleri (Ruling No 2) [2022] VSC 711
Case: [2022] VSC 711
Decision Date: 21 November 2022

CaseChat Overview and Summary

The case of Re Cappelleri (Ruling No 2) involved the parties, Cappelleri and the defendants, in a legal dispute that was heard by the Supreme Court. The plaintiffs sought to obtain costs from the defendants in relation to an interlocutory application, arguing that the defendants’ conduct warranted a departure from the usual position regarding the costs of such applications. The defendants opposed the summons on grounds that were deemed not reasonably arguable, and the plaintiffs further contended that the defendants’ allegations against the plaintiffs' solicitors were baseless.

The legal issues before the court centred on whether the defendants’ opposition to the summons was reasonably arguable and whether their serious allegations against the plaintiffs' solicitors were substantiated. The court had to determine whether the defendants' conduct justified the plaintiffs being awarded costs, including reserved costs, under Rule 63.20 of the Supreme Court (General Civil Procedure) Rules 2015.

The court found that the defendants' opposition to the summons was not reasonably arguable, and their serious allegations against the plaintiffs' solicitors were baseless. As a result, the court ruled that the defendants should pay the plaintiffs' costs of the summons, including reserved costs. This decision was based on the defendants' conduct and the unsubstantiated nature of their allegations, leading to the conclusion that a departure from the usual position on costs was warranted in this instance.

In conclusion, the court ordered the defendants to pay the plaintiffs' costs of the summons, including reserved costs, as the defendants' conduct did not provide a reasonable basis for opposing the summons and their allegations against the plaintiffs' solicitors were unfounded. This ruling reinforces the principle that where a party's opposition to an interlocutory application is not reasonably arguable and their allegations are baseless, they may be liable for the costs incurred by the successful party.

Orders