Attard v Rutkowski - [2023] NSWCA 314

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Attard v Rutkowski [2023] NSWCA 314
Hearing dates: 13 December 2023
Decision date: 15 December 2023
Before: White JA at [1]; Adamson JA at [3]
Decision:
(1) Leave to appeal refused.
(2) Order the first applicant to pay the respondents’ costs of the application for leave to appeal.

Catchwords:
LEAVE TO APPEAL — PRACTICE AND PROCEDURE — appeal against dismissal from appeal in Local Court — accountant sued for payment of outstanding fees claimed in invoices — amount in issue does not warrant grant of leave to appeal — evidence not adduced to prove basis of amounts claimed in invoices — whether plaintiff needs to do more to establish right to sums depends on whether quantum challenged by defendant — issue whether lump sum claimed in invoice with no explanation as to calculation is evidence of amount owing on invoice does not give rise to issue of principle or question of public importance in circumstances where quantum of invoices not challenged by defendant in defence and raised for the first time in closing submissions

Legislation Cited:
Supreme Court Act 1970 (NSW), s 101
Civil Procedure Act 2005 (NSW), ss 56, 58, 60

Cases Cited:
Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164
Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69
PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48
Roude v Helwani [2020] NSWCA 310
Smits v Roach (2006) 227 CLR 423; [2006] HCA 36

Category: Principal judgment
Parties: Anthony Attard (First Applicant)
Advanced Property Investments Pty Ltd (Second Applicant)
Advance Pallets Pty Ltd (Third Applicant)
Attard Family Holdings Pty Ltd as Trustee for the Attard Investment Unit Trust (Fourth Applicant)
Anthony Attard as Joint Trustee for the Attard Family Superannuation Fund (Fifth Applicant)
Jason Paul Rutkowski (First Respondent)
Carmen Attard as Joint Trustee for the Attard Family Superannuation Fund (Second Respondent)
Representation:
Counsel:
J Horowitz (Applicants)
P Boncardo (First Respondent)
Solicitors:
Benjamin Lawyers (Applicants)
Celtic Legal (First Respondent)

File Number(s): 2023/241130
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law

Citation:

Attard v Rutkowski [2023] NSWSC 784

Date of Decision:

7 July 2023

Before:

Harrison AsJ

File Number(s):

2022/317719

JUDGMENT

WHITE JA: I agree with Adamson JA.
The principal issue on this application is not whether the invoice is evidence that the amount claimed in the invoice is due, but whether that was an issue sufficiently raised in the Local Court. Both the magistrate and the primary judge held that it had not been clearly raised. That does not give rise to a question of principle that warrants the grant of leave in a case where the costs exceed the amount at stake.
ADAMSON JA: The applicants are Anthony Attard and associated entities. Mr Attard seeks leave to appeal against the dismissal of his appeal in the Supreme Court by Harrison AsJ (the primary judge) against a judgment in the…

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 Attard v Rutkowski

Details

AGLC: Attard v Rutkowski [2023] NSWCA 314
Case: [2023] NSWCA 314
Decision Date: 15 December 2023

CaseChat Overview and Summary

The applicants, Mr. Attard and Mr. Attard (trading as Attard & Co), sought leave to appeal to the Court of Appeal from a decision of the Local Court. The dispute concerned an accountant's claim for outstanding fees, evidenced by invoices issued by Attard & Co to the respondents, Mr. Rutkowski and Ms. Rutkowski. The Local Court had dismissed the appeal from its own earlier decision.

The primary legal issue before the Court of Appeal was whether the applicants had demonstrated sufficient grounds to warrant the grant of leave to appeal. Specifically, the court considered whether the Local Court had erred in its assessment of the evidence presented to prove the quantum of the outstanding fees, particularly in relation to invoices issued without detailed breakdowns of the amounts claimed. The applicants contended that the Local Court should have required more evidence to establish the basis of the sums claimed in the invoices.

White and Adamson JJA refused leave to appeal, finding that the amount in issue did not warrant such an appeal. The court reasoned that the question of whether a lump sum claimed in an invoice without explanation constitutes evidence of an amount owing is not a question of principle or public importance in circumstances where the quantum of the invoices was not challenged by the respondents in their defence and was only raised for the first time in closing submissions. The court noted that the need for the plaintiff to adduce further evidence to prove the basis of the amounts claimed would depend on whether the quantum was challenged by the defendant.

Consequently, leave to appeal was refused, and the first applicant was ordered to pay the respondents’ costs of the application for leave to appeal.

Orders

Orders of the court

(1) Leave to appeal refused.

(2) Order the first applicant to pay the respondents’ costs of the application for leave to appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Attard v Rutkowski [2023] NSWCA 314
Hearing dates:	13 December 2023
Decision date:	15 December 2023
Before:	White JA at [1]; Adamson JA at [3]
Decision:	(1) Leave to appeal refused. (2) Order the first applicant to pay the respondents’ costs of the application for leave to appeal.
Catchwords:	LEAVE TO APPEAL — PRACTICE AND PROCEDURE — appeal against dismissal from appeal in Local Court — accountant sued for payment of outstanding fees claimed in invoices — amount in issue does not warrant grant of leave to appeal — evidence not adduced to prove basis of amounts claimed in invoices — whether plaintiff needs to do more to establish right to sums depends on whether quantum challenged by defendant — issue whether lump sum claimed in invoice with no explanation as to calculation is evidence of amount owing on invoice does not give rise to issue of principle or question of public importance in circumstances where quantum of invoices not challenged by defendant in defence and raised for the first time in closing submissions
Legislation Cited:	Supreme Court Act 1970 (NSW), s 101 Civil Procedure Act 2005 (NSW), ss 56, 58, 60
Cases Cited:	Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69 PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 Roude v Helwani [2020] NSWCA 310 Smits v Roach (2006) 227 CLR 423; [2006] HCA 36
Category:	Principal judgment
Parties:	Anthony Attard (First Applicant) Advanced Property Investments Pty Ltd (Second Applicant) Advance Pallets Pty Ltd (Third Applicant) Attard Family Holdings Pty Ltd as Trustee for the Attard Investment Unit Trust (Fourth Applicant) Anthony Attard as Joint Trustee for the Attard Family Superannuation Fund (Fifth Applicant) Jason Paul Rutkowski (First Respondent) Carmen Attard as Joint Trustee for the Attard Family Superannuation Fund (Second Respondent)
Representation:	Counsel: J Horowitz (Applicants) P Boncardo (First Respondent) Solicitors: Benjamin Lawyers (Applicants) Celtic Legal (First Respondent)
File Number(s):	2023/241130
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Common Law Citation: Attard v Rutkowski [2023] NSWSC 784 Date of Decision: 7 July 2023 Before: Harrison AsJ File Number(s): 2022/317719