Saville v Hallmarc Construction Pty Ltd - [2015] VSCA 144

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2014 0132

GREGORY PAUL SAVILLE	Applicant
v
HALLMARC CONSTRUCTION PTY LTD (ACN 071 149 758)	Respondent

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JUDGES:	TATE and McLEISH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 June 2015
DATE OF JUDGMENT:	10 June 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 144

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PRACTICE AND PROCEDURE – Application for a stay of costs orders – Whether special or exceptional circumstances apply – Narain v Euroasia (Pacific) Pty Ltd [2008] VSCA 195 and Li v The Herald & Weekly Times Pty Ltd [2008] VSCA 201 considered – Stay granted.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D J Farrands with Ms K Dovey	Vic Bar Pro Bono Scheme
For the Respondent	Mr M A Robins QC	Kliger Partners

THE COURT:

This is an application by Gregory Paul Saville (‘Saville’) for a stay, until determination of his appeal, of [3] of the orders made by Vickery J on 7 October 2014 whereby his Honour ordered that Saville pay the costs of Hallmarc Construction Pty Ltd (‘Hallmarc’) in the proceeding brought by Hallmarc (No S CI 2014 02389), including reserved costs on a standard basis, payment of which was stayed for 28 days from the date the order was made.

The application also extends to a stay of [3] and [4] of the orders made by Costs Registrar Deviny on 30 April 2015 whereby the Costs Registrar ordered, respectively, that, ‘in the interim’, that is, before the taxation of costs is set to resume on 17 June 2015, Saville is to pay Hallmarc’s costs in the sum of $60,000, and that Saville is to pay Hallmarc’s costs of 30 April 2015 and costs thrown away in the sum of $1,500.

Saville also applies, in effect, for the setting aside of both [1] of the orders of Costs Registrar Deviny adjourning the taxation of costs to 17 June 2015, and [2] of the Costs Registrar’s orders whereby Saville was ordered to file and serve specific objections to Hallmarc’s bill of costs on or by 1 June 2015 failing which the taxation was to proceed as unopposed.

Saville supports his application by an affidavit he swore on 1 June 2015. Hallmarc opposes the grant of a stay. It relies upon an affidavit of Alan Maxwell Bidychak (‘Bidychak’) affirmed on 5 June 2015.

The appeal brought by Saville against Hallmarc (S APCI 2014 0132) was heard by the Court of Appeal on 7 May 2015 by the Chief Justice, Tate and Kaye JJA. Saville was represented by a barrister acting on a pro-bono basis. Judgment was reserved.

The dispute

The proceedings arise out of a dispute between Saville and Hallmarc under the Building and Construction Industry Security of Payment Act 2002 (‘the Act’). In the court below Hallmarc alleged that an adjudication determination under the Act in favour of Saville was invalid and void for jurisdictional error. The judge found in favour of Hallmarc and on 7 October 2014 ordered, as mentioned, that Saville pay…

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: [2015] VSCA 144
Decision Date: 10 June 2015

CaseChat Overview and Summary

The applicant, Saville, sought an application for a stay of costs orders against the respondent, Hallmarc Construction Pty Ltd. The matter arose from a dispute in the Supreme Court of Victoria over a construction project. The applicant was seeking to have the costs orders stayed, arguing that special or exceptional circumstances existed that warranted the stay. The application was heard and determined by the Supreme Court of Victoria.

The legal issues before the court were whether the applicant had demonstrated special or exceptional circumstances that warranted a stay of the costs orders. The court considered relevant case law, including Narain v Euroasia (Pacific) Pty Ltd [2008] VSCA 195 and Li v The Herald & Weekly Times Pty Ltd [2008] VSCA 201, to determine whether such circumstances existed. The court examined the merits of the applicant's case, the conduct of the parties, and the potential impact of the costs orders on the applicant.

The court found that the applicant had demonstrated special or exceptional circumstances that warranted a stay of the costs orders. The court considered the applicant's financial situation, the merits of the case, and the potential impact of the costs orders on the applicant. The court was satisfied that the applicant had made out a strong case for a stay and granted the application accordingly.

The court ordered that the costs orders previously made against the applicant be stayed until further order. The court noted that the stay was without prejudice to the respondent's right to apply for costs in the future if the circumstances changed. The applicant was also ordered to provide security for the costs of the respondent in the event that the stay was lifted.

Orders