Supreme Court
New South Wales
Medium Neutral Citation: Attard v Rutkowski [2023] NSWSC 784 Hearing dates: 14 March 2023 Date of orders: 7 July 2023 Decision date: 07 July 2023 Jurisdiction: Common Law Before: Harrison AsJ Decision: (1) Leave to appeal is dismissed.
(2) The appeal is dismissed.
(3) The decision of Magistrate Greenwood dated 22 September 2022 is affirmed.
(4) The summons dated 24 October 2022 is dismissed.
(5) The appellant is to pay the respondent’s costs.
Catchwords: APPEAL – Local Court – whether magistrate erred in failing to consider argument raised in closing submissions – costs of cross-claim – argument not pleaded – leave refused – appeal dismissed
Legislation Cited: Local Court Act 2007 (NSW) ss 40 and 41
Civil Procedure Act 2005 (NSW) s 22
Uniform Civil Procedure Rules 2005 (NSW) r 14.14
Legal Profession Uniform Law 2014 (NSW) s 10
Cases Cited: ABCC v CFMMEU (The Nine Brisbane Sites Appeal) (2019) 269 FCR 262
Allianz Australia Insurance Ltd v Cervantes (2012) 61 MVR 443; [2012] NSWCA 244
Baffico v YMCA of Great Lakes Inc [2014] NSWCA 61
BB Australia v Constanti [2017] VSC 114
Beale v GIO of NSW (1997) 48 NSWLR 430
Day v SAS Trustee Corporation [2021] NSWCA 71
Emery Planning Partnership Limited v Bevan [2022] EWHC 494 (QB)
Halls v Pioneer Credit Solutions Pty Ltd (No 2) [2020] NSWSC 621
Metwally v University of Wollongong (1985) 60 ALR 68
NABE v Minister for Immigration and Multicultural Affairs(No 2) (2004) 144 FCR 1
Overdean Developments Pty Limited v Garslev Holdings Pty Limited (No 3) [2021] NSWSC 1482
Tonah Investments Pty Ltd v Optima Developments Pty Ltd (2015) 90 NSWLR 268; [2015] NSWCA 287
Vlato Films hid v Speidel [1961] AC 1090
West Boat Builders Pty Ltd v Cull Holdings Pty Ltd (2000) 16 BCL 21; [1999] WASCA 72
Category: Principal judgment Parties: Anthony Attard (Plaintiff)
Jason Paul Rutkowski (First Defendant)
Carman Attard (Second Defendant)Representation: Counsel:
J. Horowitz (Plaintiff)
P. Boncardo (Defendant)Solicitors:
Benjamin Lawyers (Plaintiff)
Celtic Legal (First Defendant)
Nolan Lawyers (Second Defendant)File Number(s): 2022/317719
JUDGMENT
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This is an appeal of the decision of her Honour Magistrate Greenwood (‘the magistrate’) dated 26 September 2022.
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The appellant is Anthony Attard. The first respondent is Jason Paul Rutkowski. The second respondent is Carmen Attard as Joint Trustee of the Attard Family Superannuation Fund. Mr Rutkowski is an accountant. Mr Attard was a client of Mr Rutkowski. J. Horowitz appeared for Mr Attard. P. Boncardo appeared for Mr Rutkowski. For convenience and ease of reference I shall refer to the parties by name. Mr Attard was the defendant in the Local Court and the respondent in this appeal was the plaintiff in the Local Court. I shall refer to the respondent as Mr Rutkowski and this should be read to include the trustee, Carmen Attard. The parties relied on a joint…
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- AGLC
- Attard v Rutkowski [2023] NSWSC 784
- Case
- [2023] NSWSC 784
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court involved the proper consideration of arguments presented during closing submissions and the procedural requirements for raising such arguments. The appellant contended that the magistrate should have addressed the costs of the cross-claim as an argument, even though it was not formally pleaded. The respondent argued that the lack of pleading meant the argument was not properly before the court and, therefore, should not have been considered. The court was required to determine whether the magistrate's failure to consider the unpleaded argument constituted an error and whether this error warranted a reconsideration of the decision.
The court found that the argument concerning the costs of the cross-claim was not properly pleaded and thus should not have been considered by the magistrate. It was held that the procedural rules governing the introduction of arguments require that they be formally pleaded, and the failure to do so means the argument is not appropriately before the court. The court concluded that the magistrate did not err in not considering the unpleaded argument, and therefore, the appeal was dismissed. Additionally, the court refused leave to appeal to a higher court, affirming the decision of the District Court.
Orders
Orders of the court
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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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