Waybecca Pty Ltd v Vella - [2018] VSC 492

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COSTS COURT

S CI 2017 02472

WAYBECCA PTY LTD	Applicant
v
JOSEPH VELLA	First Respondent
RICHARD GIZA	Second Respondent

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JUDGE:	Wood AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	16 August 2018
DATE OF JUDGMENT:	10 September 2018
CASE MAY BE CITED AS:	Waybecca Pty Ltd v Vella & Anor
MEDIUM NEUTRAL CITATION:	[2018] VSC 492

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APPEARANCES:	Counsel	Solicitors
No appearance for the Applicant	Falcone & Adams
No appearance for the First Respondent
The Second respondent appeared in person with ‘McKenzie friend’ (Stanislawa Bahonko)

HIS HONOUR:

I heard two matters in this proceeding on 16 August 2018 and reserved my decision. I now publish my decision and reasons. Disputes between these parties have a long and unfortunate history. It is necessary to describe some of that history before dealing with the two matters before me. What started out as a minor dispute in the Magistrates’ Court has culminated in a succession of unsuccessful applications by the respondents before an Associate Judge, a Judge, the Court of Appeal and finally the High Court.
The current proceeding in the Costs Court was initiated by the applicant to quantify its entitlement to costs arising from orders made by an Associate Judge, Judge and the Court of Appeal. The appeal from the Judge to the Court of Appeal was dismissed on a self-executing order as a result of a failure of the respondents to comply with a security for costs order for $25,000.
The following passage from the Court of Appeal[1] is worth citing.
17.This proceeding concerns property of relatively modest value. The costs that have been incurred from the commencement of proceedings in the Magistrates’ Court to date, however, could only be described as wholly out of proportion with the value of the subject matter of the dispute. Moreover, as the judgments that have already been written in the Trial Division and in this Court in these proceedings disclose, Mr Giza’s compliance with the overarching obligations set out in the Civil Procedure Act 2010 could not be described as wholehearted.
…
19.Mr Giza is impecunious. That impecuniosity has not been brought about by any conduct of Waybecca. In the event that Mr Giza fails in his application for leave to appeal, there is little (if any) prospect that Waybecca will recover its costs from Mr Giza.
[1]Giza v Waybecca Pty Ltd (2014) VSCA 184.
The initiating Summons for Taxation in the Costs Court was issued on 29 June 2017 with an endorsement notifying the respondents that a Notice of Objection should be filed seven days prior to the hearing date endorsed on the Summons. A case management/mediation was endorsed on the Summons with the scheduled date of 31 July 2017. A Notice of Objection on behalf of the respondents was filed on 17 July2017. It did not comply with Rule 63.47(2) Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’) and merely made submissions about the applicant’s lack of standing in…

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: [2018] VSC 492
Decision Date: 10 September 2018

CaseChat Overview and Summary

Waybecca Pty Ltd applied for an assessment of costs against Joseph Vella and Richard Giza. The application was initiated after the Court of Appeal dismissed an appeal brought by Vella and Giza for failure to provide security for costs. Vella and Giza filed a Notice of Review and a Summons seeking to have the costs proceeding dismissed on the basis of alleged breaches of the Civil Procedure Act 2010 (Vic). Vella and Giza appeared before Wood AsJ who dismissed both the Notice of Review and the Summons. Vella and Giza had a history of unsuccessful litigation against Waybecca. The Notice of Review and Summons were replete with irrelevant and baseless claims. The Notice of Review failed to comply with procedural requirements and the Summons was brought outside of the time limits prescribed by statute. Vella and Giza had no capacity to pay any of the costs orders made against them. The Notice of Review and Summons were dismissed.

Orders