Zanjani v Sutcliffe - [2002] VSC 282

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 7273 of 2001

SOHILA ZANJANI	Appellant
v
PHILIP SUTCLIFFE and RUTH SUTCLIFFE	Respondents

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JUDGE:	Balmford J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 June 2002
DATE OF JUDGMENT:	23 July 2002
CASE MAY BE CITED AS:	Zanjani v Sutcliffe
MEDIUM NEUTRAL CITATION:	[2002] VSC 282

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FAIR TRADING – appeal from the Victorian Civil and Administrative Tribunal – appeal dismissed – claim to recover legal costs under the appellant’s guarantee – question in the Notice of Appeal not raised below – the jurisdiction of the Tribunal under the Fair Trading Act – application to vary the Tribunal’s order to include barrister’s fees not allowed

Fair Trading Act 1999 – sections 107, 108
Victoria Civil and Administrative Tribunal Act 1998 – section 148

City of Greater Geelong v Herd (1997) 94 LGERA 149
Coulton v Holocombe (1986) 162 CLR 1
Geelong Building Society (in liq) v Encel [1996] 1 VR 594
Mond v Lipshut [1999] 2 VR 342

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J D Mattin	Jamie King & Associates
For the Respondents	Mr J P Moore	Not applicable

HER HONOUR:

Introduction

This is an appeal on a question of law under section 148 of the Victorian Civil and Administrative Tribunal Act 1998 (“the VCAT Act”) against a decision of the Victorian Civil and Administrative Tribunal (“the Tribunal”), constituted by Mr Peter Eggleston, Member, made on 25 July 2001 in its Civil Claims List. The appellant (“Ms Zanjani”) was the respondent before the Tribunal, and the respondents (“the Sutcliffes”) were the applicants before the Tribunal. The firm of Kelly & Chapman, solicitors, was joined pursuant to section 60 of the VCAT Act on the basis that it was a “sufficiently interested party”.

Leave to appeal out of time was granted on 27 September 2001 by this Court and on the same date Master Wheeler ordered that the questions of law to be included in the Notice of Appeal were:

(a)In circumstances where the applicant made a recommendation as to the retention of a firm of solicitors (to wit Kelly & Chapman “the sufficiently interested party”) on 31 May 1999, did the Tribunal have jurisdiction to entertain a complaint for a claim for damages pursuant to the Fair Trading Act 1999 [“the Fair Trading Act”] proclaimed on 1 September 1999.
(b)Having found that Downtown Access Pty Ltd [“Downtown”] was the client (see paragraph 7(b) of the exhibit SZ-11 to the affidavit of Sohila Zanjani sworn 31 August 2001) of Kelly & Chapman in respect to the domestic building dispute, was it open to the Tribunal to order that the applicant pay to the respondents damages calculated by reference to fees paid in respect of such dispute.

A third question of law was included in the Notice of Appeal, apparently by oversight, and, properly, was not pressed.

Ms Zanjani conducts a business under the name “Prime Law Brokers”. An advertisement for that business appearing…

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 Zanjani v Sutcliffe

Details

AGLC: Zanjani v Sutcliffe [2002] VSC 282
Case: [2002] VSC 282
Decision Date: 23 July 2002

CaseChat Overview and Summary

The matter of Zanjani v Sutcliffe involved an appeal by the appellant, Zanjani, from a decision of the Victorian Civil and Administrative Tribunal (VCAT) concerning a claim for legal costs under the appellant’s guarantee. The respondent, Sutcliffe, had sought recovery of legal costs from Zanjani under the terms of a guarantee agreement. Zanjani contested the claim, leading to a decision by VCAT in favour of Sutcliffe. Dissatisfied with the outcome, Zanjani appealed to the court, seeking to overturn the decision and arguing for a different interpretation of the guarantee and the applicable law.

The central legal issues in the appeal were whether the appellant's guarantee covered the costs in question and if the VCAT had correctly exercised its jurisdiction under the Fair Trading Act. Additionally, the court had to consider whether the appellant had raised the pertinent questions at the tribunal level and if there were any procedural grounds to deny the application to vary the tribunal’s order. The court also had to determine if the tribunal had the authority to order costs beyond what was stipulated in the guarantee, specifically addressing the inclusion of barrister’s fees.

In its reasoning, the court found that the appellant had not raised the specific questions that were now being pursued on appeal, and thus the appeal was dismissed. The court held that the tribunal had correctly exercised its jurisdiction under the Fair Trading Act and that the tribunal's order was valid. The court further determined that the tribunal did not have the authority to order costs beyond what was stipulated in the guarantee, including the costs of a barrister. The appeal was dismissed with no orders as to costs.

The court concluded that the appeal did not succeed, and the orders of the tribunal remained in place. The court's decision reinforced the importance of procedural fairness and the need for specific issues to be raised at the appropriate level of proceedings. The tribunal’s decision was upheld, and the appeal was dismissed without costs.

Orders