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Attard v Rutkowski

Attard v Rutkowski

Case [2023] NSWSC 784 7 July 2023

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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
Ming v DPP [2022] NSWCA 209
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
Whisprun Pty Ltd v Dixon (2003) 234 CLR 492; [2003] HCA 48

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

This is an appeal of the decision of her Honour Magistrate Greenwood (‘the magistrate’) dated 26 September 2022.
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…

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] NSWSC 784
Case: [2023] NSWSC 784
Decision Date: 07 July 2023

CaseChat Overview and Summary

In the case of Attard v Rutkowski, the parties involved were Attard, the appellant, and Rutkowski, the respondent. The dispute originated from a previous judgment of the Local Court of New South Wales, which had resolved issues between the parties concerning a cross-claim. The matter was brought before the District Court of New South Wales for an appeal against the decision of the Local Court, specifically focusing on whether the magistrate had erred by failing to consider an argument raised during closing submissions regarding the costs of the cross-claim. The argument in question had not been explicitly pleaded, leading to the contention that the magistrate should have addressed it despite its late introduction.

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