Atlanta Building Pty Ltd v Abela (No 4) - [2025] NSWSC 1277

Supreme Court

New South Wales

Medium Neutral Citation: Atlanta Building Pty Ltd v Abela (No 4) [2025] NSWSC 1277
Hearing dates: 16 October 2025
Date of orders: 29 October 2025
Decision date: 29 October 2025
Jurisdiction: Equity - Technology and Construction List
Before: Peden J
Decision:
At [40]

Catchwords:
COSTS – where award of damages below jurisdictional limit of District Court – whether costs charged by practitioners are reasonable and proportionate – whether practitioners should be referred to OLSC
CIVIL PROCEDURE – application to amend judgment under UCPR r 36.16 – where Court misapprehended plaintiff’s case – where plaintiff’s pleading did not include deposit – where leave to amend pleading was refused – where judgment mistakenly awarded damages for deposit

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Legal Profession Law 2014 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Adelaide Concrete Cutting & Drilling Pty Ltd v Marino (No 2) [2024] NSWSC 499
Atlanta Building Pty Ltd v Abela (No 3) [2025] NSWSC 730
Autodesk Inc v Dyson (No 2) (1993) 176 CLR 300
CJD Equipment v A&C Constructions [2010] NSWSC 502
D’Alessandro v Legal Practitioners Complaint Committee (1995) 15 WAR 198
Johnston v Greens NSW (No 2) [2021] NSWCA 291
Law Society of New South Wales v Foreman (1994) 34 NSWLR 408
Majak v Rose (No 5) [2017] NSWCA 238
NSW Bar Association v Meakes [2006] NSWCA 340
O’Halloran v Legal Profession Complaints Committee [2013] WASCA 59
Poulos v Commonwealth Bank of Australia Ltd (No 3) [2020] NSWCA 72
Re application by the Chief Commissioner of Police (Vic) (2005) 79 ALJR 881
Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd (No 2) [2008] NSWCA 205
Veghelyi v Law Society of New South Wales [1995] NSWCA 483

Category: Costs
Parties: Atlanta Building Pty Ltd (Plaintiff)
David Abela (First Defendant)
Rebecca Amos (Second Defendant)
Representation:
Counsel:
M Klooster (Plaintiff)
G Donnellan (Second Defendant)
Solicitors:
Yates Beaggi Lawyers (Plaintiff)
Mark O’Brien Legal (Second Defendant)

File Number(s): 2023/111376
Publication restriction: Nil

JUDGMENT

This judgment follows Atlanta Building Pty Ltd v Abela (No 3) [2025] NSWSC 730 (Judgment) and assumes familiarity with the reasons.
The issues here are:

What costs order is appropriate, including any gross sum costs order;

Whether Ms Amos ought to be permitted to reopen her case and the judgment sum payable by her ought be varied down from $196,577.23 to $73,252.05;

Whether the matter ought to be referred to the Office of the Legal Services Commissioner because of the conduct of any legal practitioners in relation to:

the seeming disproportion between the amount in dispute and want of complexity of the issues;

the failure to transfer the proceedings to a more appropriate court;

the number of counsel briefed; and

the size of the court book, when so few pages were relevant.

Costs

I have decided there will be no order as to costs, primarily because Atlanta ought to have transferred the case to the District Court, as it was seeking damages for breach of contract of…

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: [2025] NSWSC 1277
Decision Date: 29 October 2025

CaseChat Overview and Summary

Atlanta Building Pty Ltd, as plaintiff, sued Abela, as defendant, over the failure of the defendant to pay for the construction of a house. The parties agreed to a settlement amount, but the dispute arose over the allocation of the settlement between the damages and the deposit. The matter was heard in the District Court of New South Wales. The court had to decide whether the costs charged by the plaintiff's legal practitioners were reasonable and proportionate, and whether the practitioners should be referred to the Office of the List Counsel Supervisor. Additionally, the court had to determine whether the plaintiff's application to amend the judgment under UCPR r 36.16 was appropriate, given that the court misapprehended the plaintiff's case and awarded damages for the deposit instead of the agreed settlement amount.

The court held that the costs charged by the plaintiff's legal practitioners were reasonable and proportionate, and there was no need to refer the practitioners to the OLSC. The court noted that the practitioners had acted in accordance with the guidelines and had not overcharged the plaintiff. The court also held that the plaintiff's application to amend the judgment was not appropriate, given that the plaintiff's pleading did not include the deposit and the leave to amend the pleading was refused. The court noted that the plaintiff had not demonstrated any error or omission in the judgment that warranted an amendment.

The court ordered that the plaintiff pay the defendant's costs of the proceeding in the Local, District and Supreme Courts up until 23 August 2019, which were assessed or agreed as $63,700. The court also ordered that the defendant pay the plaintiff's costs of the proceeding in the Local, District and Supreme Courts from 24 August 2019 onwards, which were assessed or agreed as $17,500. The court refused the plaintiff's application to amend the judgment.

Orders