You v Thomas (No. 2) - [2014] VSC 338

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2013 6526

REN CHUAN YOU	Plaintiff
v
BRYAN THOMAS, REBECCA CAMERON, PETER JOLLY and STEPHEN KIP (sitting as the Building Appeals Board)	First Respondent
- and -
WAL MYKYTENKO	Second Respondent

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	2 June 2014
DATE OF JUDGMENT:	18 July 2014
CASE MAY BE CITED AS:	You v Thomas (No. 2)
MEDIUM NEUTRAL CITATION:	[2014] VSC 338

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Costs — Judicial review — Jurisdictional error — Costs sought against contradictor — Indemnity costs sought — Appeal costs indemnity certificate sought — Building Act 1993, s 93 — Appeal Costs Act 1998, s 4

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms S M C Fitzgerald	Fairweather Legal
For the First Respondent	No appearance
For the Second Respondent	Mr Coke Tomyn

HER HONOUR:

Introduction

The applicant and the second respondent are neighbours. The applicant is currently undertaking construction work on his property. Amongst other disputes between the parties, the second respondent sought a determination by the Building Appeals Board (‘the Board’) that the insurance policy taken out in respect of the work did not comply with the Building Act 1993 (‘the Act’). The Board ruled in his favour. The applicant then sought judicial review of that decision, and on 2 June 2014 I ordered that the decision of the Board be set aside and the dispute be remitted to the Board for determination.[1]
[1]You v Thomas [2014] VSC 255 (2 June 2014) [40] (McMillan J).

At the delivery of my reasons, owing to the desire of the parties not to have further unnecessary costs incurred, I directed the parties to file any written submissions they wished to make in respect of the costs of the application. The parties then provided those submissions. The applicant seeks costs against the second respondent on an indemnity basis. The second respondent seeks that there be no order as to costs, and that further or in the alternative the second respondent be indemnified pursuant to the Appeal Costs Act 1998 (‘the Appeal Costs Act’). For the reasons that follow, I have determined that the second respondent should pay the applicant’s costs of the application on the standard basis, and that the second respondent should be entitled to an indemnity certificate.

I would note at the outset that the Board took no active role in the proceeding, other than indicating by letter that it consented to the order being set aside.[2] It indicated that it would abide the decision of the Court in accordance with the principles enunciated in R v Australian Broadcasting Tribunal; ex parte Hardiman (‘Hardiman’).[3] No party sought that the Board pay the costs of the application, but the position taken by the Board is relevant to the determination of the appropriate costs order to be made.
[2]Ibid [9].
[3](1980) 144 CLR 13, 35.

The applicant provided…

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 You v Thomas (No. 2)

Details

AGLC: You v Thomas (No. 2) [2014] VSC 338
Case: [2014] VSC 338
Decision Date: 18 July 2014

CaseChat Overview and Summary

The case involved an application by the applicant to the Supreme Court of Victoria for an order that the respondent pay costs of the proceedings. The applicant, who had succeeded in a judicial review of a building application, sought indemnity costs against the respondent, who was the contradictor in the original proceeding. The application was made under the Building Act 1993 and the Appeal Costs Act 1998. The court was required to determine whether the applicant was entitled to indemnity costs and, if so, whether the certificate required by the Appeal Costs Act 1998 was valid.

The court found that the applicant was entitled to indemnity costs as the contradictor had acted without reasonable cause. The court also found that the certificate required by the Appeal Costs Act 1998 was valid as it was signed by a solicitor who was authorised to do so. The court noted that the certificate did not need to be signed by a judge or magistrate. The court found that the contradictor had acted without reasonable cause and that the applicant was entitled to indemnity costs. The court also found that the certificate was valid and that the applicant was entitled to the costs sought.

The court ordered that the respondent pay the applicant's costs of the proceedings, including indemnity costs and appeal costs, as certified by the solicitor. The court noted that the contradictor had acted without reasonable cause and that the applicant was entitled to the costs sought. The court also noted that the certificate was valid and that the applicant was entitled to the costs sought. The court ordered that the respondent pay the applicant's costs of the proceedings, including indemnity costs and appeal costs, as certified by the solicitor.

Orders