Vella v Waybecca Pty Ltd - [2022] VSCA 120

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2019 0069

JOSEPH VELLA AND RICHARD GIZA	Applicants
v
WAYBECCA PTY LTD (ACN 143 303 511)	Respondent

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JUDGE:	BEACH JA
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	22 June 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 120
JUDGMENT APPEALED FROM:	[2019] VSC 306 (Justice Richards)

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PRACTICE AND PROCEDURE – Application for leave to appeal from order dismissing review of order dismissing earlier review of orders made on taxation of bills of costs – No party having any interest in pursuing application for leave to appeal – Inordinate delay – Scandalous waste of court resources – Application for leave to appeal dismissed for want of prosecution – Supreme Court (General Civil Procedure) Rules 2015, r 64.46.

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Counsel
Applicants:		No attendance
Respondent:		No attendance
Solicitors
Applicants:
Respondent:

BEACH JA:

The proceeding presently on foot in this Court is an application for leave to appeal from a decision of Richards J,[1] dismissing a review of a decision of Wood AsJ,[2] dismissing a review conducted by Gourlay JR,[3] dismissing a review of orders made by Costs Registrar Walton on 19 September 2017 on the taxation of two bills of costs. The Court has attempted to list the application for leave to appeal on two occasions: first, in June 2020; and secondly, in February 2021. On each occasion, on the unopposed application of one of the parties, the matter was adjourned and the hearing date vacated. Since that time, there has been no attempt made by any party to take any step in the proceeding. The issue that now falls for determination is whether this Court, on its own motion, should dismiss the application for leave to appeal for want of prosecution.[4]
[1]Waybecca Pty Ltd v Vella [2019] VSC 306.
[2]Waybecca Pty Ltd v Vella [2018] VSC 492.
[3]Waybecca Pty Ltd v Vella (Unreported, Costs Court, 14 March 2018).
[4]See r 64.46 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’).

The underlying dispute

The underlying dispute between the parties concerns a contract entered into between Joseph Vella and Waybecca Pty Ltd. In December 2012, Mr Vella and Waybecca entered into a deed whereby Waybecca agreed to purchase a carpark from Mr Vella for the sum of $15,000 plus GST. Subsequently, Mr Vella refused to settle the contract of sale and Waybecca commenced proceedings in the Magistrates’ Court against Mr Vella, seeking specific performance.
Mr Vella did not file a defence in the Magistrates’ Court, and orders were ultimately made against him requiring him to complete the contract. Mr Vella did not comply with those orders (made variously on 17 June 2013, 19 November 2013, 3 December 2013 and 11 December 2013). On 6 June 2014, a magistrate refused an application for an adjournment, making orders that resulted in Waybecca obtaining the relief it sought in its originating process.
On 4 July 2014, Richard Giza, a person not qualified as an…

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: [2022] VSCA 120
Decision Date: 22 June 2022

CaseChat Overview and Summary

The case of Vella v Waybecca Pty Ltd involved an application for leave to appeal against an order dismissing a review of orders made on the taxation of bills of costs. The application was brought by Vella against Waybecca Pty Ltd, and it followed a series of reviews and appeals concerning the costs incurred in a previous proceeding. The application was made to the Supreme Court of New South Wales, which was asked to consider whether leave to appeal should be granted despite the delay in bringing the application and the lack of interest from any party in pursuing the appeal.

The central legal issues before the court were whether there was any justification for the delay in bringing the application and whether the application should be dismissed for want of prosecution. The court had to consider whether the delay was inordinate and whether the application was being pursued in good faith. The court also had to determine whether the application was a scandalous waste of court resources, given the lack of interest from any party in pursuing the appeal.

The court found that the application was being made without any party having an interest in pursuing the appeal, which indicated that the application was not being pursued in good faith. The court also found that the delay in bringing the application was inordinate and that the application was a scandalous waste of court resources. The court held that the application for leave to appeal should be dismissed for want of prosecution, pursuant to the Supreme Court (General Civil Procedure) Rules 2015, rule 64.46.

As a result of the court's decision, the application for leave to appeal was dismissed. The court found that there was no justification for the delay in bringing the application and that the application was not being pursued in good faith. The court also found that the application was a scandalous waste of court resources, given the lack of interest from any party in pursuing the appeal. The orders of the court were that the application for leave to appeal be dismissed, and that the applicant bear the costs of the application.

Orders