Ashell Homes Constructions Pty Ltd v Kobus

Case [2024] ACTCA 32


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Case Title:

Ashell Homes Constructions Pty Ltd v Kobus

Citation: 

[2024] ACTCA 32

Hearing Date: 

7 November 2023

Decision Date: 

19 November 2024

Before:

Mossop, Loukas-Karlsson and Baker JJ

Decision: 

(1)    The appeal is allowed.

(2)    Orders 1, 4 and 5 of the orders of 21 December 2022 made by McWilliam AsJ are set aside.

(3)    The matter be remitted to McWilliam J for determination in accordance with the Court’s reasons.

(4)    The respondents to pay the appellant’s costs of this appeal.

(5)    Costs of this appeal are not to be assessed until the conclusion of the proceedings in the Supreme Court on remitter.

Catchwords: 

PRACTICE AND PROCEDURE – APPEAL – Appeal against award of damages by primary judge – whether there was a denial of procedural fairness – damages awarded on a basis other than the basis run at trial – appeal allowed – matter remitted

Legislation Cited: 

Copyright Act 1968 (Cth) s 116

Court Procedures Act 2004 (ACT) s 5A

Supreme Court Act 1933 (ACT) ss 37E, 37O

Cases Cited: 

Adamson v Ede [2009] NSWCA 379

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175

Applicant VEAL of 2022 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; 225 CLR 88

Ashell Homes Constructions Pty Ltd v Kobus [2022] ACTSC 323

Ashell Homes Constructions Pty Ltd v Kobus (No 2) [2022] ACTSC 359

Australian Capital Territory v Crowley [2012] ACTCA 52; 7 ACTLR 142

Banque Commerciale SA en Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279

Baulkham Hills Shire Council v Basemount Pty Ltd [2003] NSWCA 189; 126 LGERA 339

Bellgrove v Eldridge [1954] HCA 36; 90 CLR 613

Broken Hill Cobalt Project Pty Ltd v Lord [2022] NSWCA 271

Bobanovic v Incandela [2015] ACTCA 63; 74 MVR 96

Bonfiglioli v RW Winning Pty Ltd [1993] NSWCA 28

Condon v Pompano [2013] HCA 7; 252 CLR 38

Dwyer v Volkswagen Group Australia Pty Ltd [2023] NSWCA 211

Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89

Findex Group Pty Ltd v McKay [2023] ACTCA 36

Fox v Percy [2003] HCA 22; 214 CLR 118

International Finance Trust Company Ltd v New South Wales Crime Commission [2009] HCA 49; 240 CLR 319

Kmjulac v Lincu [2015] NSWCA 367

Kostas v HIA Insurance Services Ltd [2010] HCA 32; 241 CLR 390

Manny v David Lardner Lawyers (No 4) [2024] ACTCA 12

McColley v Commonwealth [2014] ACTCA 21

Murphy v Overton Investments Pty Ltd [2004] HCA 3; 216 CLR 388

Najdovksi v Crnojlovic [2008] NSWCA 175; 72 NSWLR 728

Pavlovic v Universal Music Australia Pty Ltd (No 2) [2016] NSWCA 31

Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd [2003] HCA 10; 77 ALJR 768

Re Association of Architects of Australia; Ex parte Municipal Officers Association of Australia (1989) 63…

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AGLC
Ashell Homes Constructions Pty Ltd v Kobus [2024] ACTCA 32
Case
[2024] ACTCA 32
Decision Date

CaseChat Overview and Summary

Ashell Homes Constructions Pty Ltd appealed to the Supreme Court of Victoria, Court of Appeal, against an award of damages made by a primary judge in favour of Kobus. The central dispute concerned whether the primary judge had denied the appellant procedural fairness by awarding damages on a basis that had not been properly run or considered during the trial.

The Court of Appeal was required to determine whether the primary judge’s decision to award damages on a basis different from that presented by the parties at trial constituted a denial of procedural fairness to the appellant. This involved considering whether the appellant had a sufficient opportunity to address the alternative basis for damages and whether the award was within the scope of the case as it had been litigated.

The Court of Appeal found that there had been a denial of procedural fairness. Their Honours reasoned that the primary judge had awarded damages on a basis that was not foreshadowed or argued by the parties, thereby depriving the appellant of the opportunity to present its case or make submissions in relation to that specific basis for the award. Consequently, the appeal was allowed, and the matter was remitted to the primary judge for redetermination. The respondents were ordered to pay the appellant's costs of the appeal.

Orders

Orders of the court

(1) The appeal is allowed.

(2) Orders 1, 4 and 5 of the orders of 21 December 2022 made by McWilliam AsJ are set aside.

(3) The matter be remitted to McWilliam J for determination in accordance with the Court’s reasons.

(4) The respondents to pay the appellant’s costs of this appeal.

(5) Costs of this appeal are not to be assessed until the conclusion of the proceedings in the Supreme Court on remitter.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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