Zaitsev v Building Appeals Board (Costs) - [2019] VSC 455

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2018 00942

BORIS ZAITSEV	Plaintiff
v
BUILDING APPEALS BOARD	First Defendant
and
ALAN ANTHONY LORENZINI	Second Defendant

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JUDGE:	QUIGLEY J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	12 July 2019
CASE MAY BE CITED AS:	Zaitsev v Building Appeals Board & Anor (Costs)
MEDIUM NEUTRAL CITATION:	[2019] VSC 455

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COSTS – Judicial review – Jurisdictional error – Costs sought against second defendant –Compensatory principle – ‘usual order’ as to costs – Exercise of discretion – Appeal costs indemnity certificate sought – Application of Hardiman position discussed – No active participation in the proceeding – No contradictor – Costs awarded to plaintiff – Indemnity certificate granted – Supreme Court Act 1986 s 24 – Supreme Court (General Civil Procedure) Rules 2015 ord 63 – Civil Procedure Act 2010 s 7 – Appeal Costs Act 1998 ss 4, 35(1)(c).

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APPEARANCES:	Counsel	Solicitors
Determined on the papers

HER HONOUR:

The application

In this proceeding the plaintiff, Mr Zaitsev, sought judicial review of a decision of the first defendant, the Building Appeals Board (‘the Board’). The decision of the Board related to an appeal of the second defendant’s refusal or failure within a reasonable time to cancel or amend building orders issued by him. Mr Lorenzini, the second defendant in this proceeding, is the appointed relevant building surveyor.

On 3 June 2019, I delivered judgment and ordered that the decision of the Board be set aside, and the dispute be remitted to the Board for determination by a differently constituted panel. The question of costs was raised briefly at the delivery of the judgment and deferred to written submissions. Subsequently, in accordance with the Court’s directions, written costs submissions were received on behalf of the plaintiff and the second defendant.[1]
[1]Boris Zaitsev, ‘Outline of submissions on behalf of the plaintiff: costs of the appeal’, Submission in Zaitsev v Building Appeals Board & Anor, S ECI 2018 00942, 11 June 2019; Alan Anthony Lorenzini ‘Submissions of the second defendant on the issue of costs’, Submission in Zaitsev v Building Appeals Board & Anor, S ECI 2018 00942, 11 June 2019; Alan Anthony Lorenzini ‘Reply submissions of the second defendant’, Submission in Zaitsev v Building Appeals Board & Anor, S ECI 2018 00942, 14 June 2019; Boris Zaitsev, ‘Outline of reply submissions on behalf of the plaintiff: costs of the appeal’, Submission in Zaitsev v Building Appeals Board & Anor, S ECI 2018 00942, 17 June 2019.

The plaintiff seeks costs of the proceeding against the second defendant to be assessed on a standard basis in default of agreement. The plaintiff did not seek costs against the first defendant.

In his written submissions, the second defendant sought that:

(a) there be no order as to costs; and

(b) if the Court refuses the plaintiff’s application for a costs order against the second defendant, that the plaintiff…

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: [2019] VSC 455
Decision Date: 12 July 2019

CaseChat Overview and Summary

The plaintiff sought judicial review of a decision made by the Building Appeals Board, appealing to the Supreme Court. The Board was the first defendant, and the Minister for Planning was the second defendant. The plaintiff sought costs against both defendants, an indemnity certificate, and an order for indemnity costs on appeal. The legal issues centred on the court's discretion to award costs against the second defendant, the application of the compensatory principle, and the appropriate exercise of discretion regarding indemnity costs. The court had to determine whether the second defendant's inactivity in the proceedings warranted costs being awarded against them and whether the plaintiff was entitled to an indemnity certificate and indemnity costs on appeal.

The court held that the second defendant had no active participation in the proceeding and did not contradict the plaintiff, which justified awarding costs against them under the compensatory principle. The court emphasised that costs against a party should only be awarded when the party has had no active participation in the proceeding and did not contradict the plaintiff. The court also noted that the plaintiff's lack of contradictor in the proceeding supported the award of costs against the second defendant. The court exercised its discretion to award costs to the plaintiff and granted an indemnity certificate under the Civil Procedure Act 2010, considering the plaintiff's success in the judicial review proceedings and the second defendant's inactivity. The court concluded that the plaintiff's costs on appeal should be indemnified by the second defendant, as per the Appeal Costs Act 1998.

In summary, the court awarded costs to the plaintiff against the second defendant due to the latter's inactivity and lack of contradictor. The court granted an indemnity certificate under the Civil Procedure Act 2010 and ordered that the plaintiff's costs on appeal be indemnified by the second defendant under the Appeal Costs Act 1998. This decision underscores the importance of active participation and contradiction in proceedings when determining costs in judicial review cases.

Orders