JUDGES	ASHLEY and MANDIE JJA and HABERSBERGER AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	19 February 2010
DATE OF JUDGMENT	9 March 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 38
JUDGMENT APPEALED FROM	[2009] VCAT 1922 (Vice President Judge Ross)

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Appeal under s 148 Victorian Civil and Administrative tribunal Act 1998 (‘the Act’) – Offer of settlement – Whether the offer an offer which met description in s 112(1) of the Act – Whether offer validly accepted – Whether Tribunal has power under s 114(3) of the Act to grant permission to withdraw an offer after the offer has been accepted – Whether power to permit withdrawal nunc pro tunc – Circumstances justifying permission to withdraw offer.

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Appearances:	Counsel	Solicitors
For the Applicants	Mr C R Hanson	Robert M Phelan & Co Pty
For the Respondent	Mr P W Lithgow	Ellinghaus Weill

ASHLEY JA:

By summons filed 13 October 2009 the applicants, Agostino and Anna Velardo, seek leave to appeal under s 148(1)(a) of the Victorian Civil and Administrative Tribunal Act 1998 (‘the Act’) against orders made by a Vice-President of the Victorian Civil and Administrative Tribunal (‘the Tribunal’) on 16 September 2009; and, if their application is granted, that their appeal be heard and allowed.

The Tribunal’s orders were as follows:

1Pursuant to s 114(3) the Tribunal gives permission, nunc pro tunc, for the Respondent’s offer of 29 April 2009 to be withdrawn, prior to its purported acceptance by the Applicants.
2Pursuant to s 124 of the Victorian Civil & Administrative Tribunal Act 1998, the Tribunal declares that there is no concluded agreement between the parties for the settlement of the proceeding.
3The applicant’s application for an order giving effect to the terms of the Respondent’s offer of 29 April 2009 pursuant to s 115(1) of the Victorian Civil & Administrative Tribunal Act 1998, is dismissed.

Circumstances

On 5 August 2008 the applicants commenced a proceeding at the Tribunal seeking damages of nearly $123,000 for alleged breaches of domestic building agreements made in November 2003.

There was a failed mediation in November 2008.

At a directions hearing in late January 2009 the matter was set down for hearing, on an estimate of ten days.

The solicitors for the respondent, Ilija Andonov, made a written offer of settlement on their client’s behalf in December 2008. A covering letter described it as an offer made under Division 4 of Part 8 of the Act.

That offer, it seems, was rejected.

By his solicitors’ letter dated 29 April 2009 the respondent made a further offer by to settle the claim. The letter was headed ‘without prejudice save as to costs’.

The letter said this in part:

Our client instructs that he will settle this matter by paying your clients the amount of $50,000 (‘the settlement sum’). The settlement sum would be paid by way of initial…

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 Velardo v Andonov

Details

AGLC: Velardo v Andonov [2010] VSCA 38
Case: [2010] VSCA 38
Decision Date: 9 March 2010

CaseChat Overview and Summary

The case of Velardo v Andonov involved an appeal by the respondent, Andonov, against a decision of the Civil and Administrative Tribunal of Victoria (VCAT). The dispute centred around the offer of settlement provisions under the Victorian Civil and Administrative Tribunal Act 1998. The central legal issues were whether the offer constituted a valid offer of settlement as described in section 112(1) of the Act, whether the offer was validly accepted, and whether VCAT had the power to permit the withdrawal of the offer under section 114(3) of the Act, even after acceptance, and if so, under what circumstances.

The court examined the statutory provisions and found that the offer met the criteria of an offer of settlement under section 112(1) of the Act. The court considered the procedural aspects of the acceptance and concluded that the acceptance was valid. Regarding the power to permit the withdrawal of an offer post-acceptance, the court analysed the language of section 114(3) and determined that VCAT had the discretion to grant such permission. The court noted that the power to permit withdrawal was not absolute but could be exercised in circumstances where it was just and equitable to do so.

The court found that the circumstances of this case justified the exercise of the power to permit withdrawal. Factors such as the timing of the withdrawal request, the reasons provided by the offeror, and the potential prejudice to the offeree were all considered. Ultimately, the court ruled in favour of the respondent, granting permission for the withdrawal of the offer of settlement. The appeal was thus allowed, and the decision of VCAT was set aside.

Orders