Boden v Gleeson

[2013] NSWCA 447

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Boden v Gleeson [2013] NSWCA 447

Hearing dates:

11/12/2013

Decision date:

11 December 2013

Before:

Basten JA;
Meagher JA;
Leeming JA.

Decision:

1. Refuse leave to appeal from the judgment of Gibb DCJ delivered on 18 December 2012 in the District Court.

2. Order the applicants to pay the respondents' costs in this Court.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

COSTS - application for leave to appeal from order as to costs - no error of principle - no question of general importance or clear injustice - leave refused

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 90
Consumer, Trader and Tenancy Tribunal Act 2001 (NSW), s 23(1)(b)

Cases Cited:

Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164
St George Bank - A Division of Westpac Banking Corporation (formerly St George Bank Ltd) v Jin [2013] NSWCA 306

Category:

Principal judgment

Parties:

Margaret Boden and William Boden (applicants)
Anthony Joseph Gleeson and Ann Maria Gleeson (respondents)

Representation:

Counsel:
T Lynch and D Hand (applicants)
T Davie (respondents)
Solicitors:
Hazan Hollander (applicants)
Schrader Legal (respondents)

File Number(s):

2013/82763

 Decision under appeal 

Jurisdiction:

9101

Date of Decision:

2012-12-18 00:00:00

Before:

Gibb DCJ

File Number(s):

2009/336899

Judgment

1. THE COURT: These are the Court's reasons for refusing the application for leave at the conclusion of oral argument.

1. The application for leave concerns costs. The magnitude of those costs is unknown, although the argument in the court below concerning them (and interest) seems to have taken six days, following the adoption of an expert's reports. Originally, a modest claim and cross-claim had been commenced in the Consumer, Trader and Tenancy Tribunal (CTTT) in 2007, concerning a building contract entered into more than a decade ago.

1. It is convenient to call the applicants for leave in this Court, who were the cross-claimants in the District Court, the Owners, and the respondents in this Court, who were plaintiffs in the District Court, the Builder. For some reason the second respondent was joined although she seems not to have been a contracting party, but nothing turns on that.

1. The dispute arose out of a building contract for alterations and additions to a house in Mosman in 2003. Practical completion was certified on 3 June 2005, but on 24 November 2005 a list of defective works was issued, some but not all of which were rectified by the Builder. In June 2007, the Builder sought in the CTTT:

(1)   outstanding contract moneys, being the balance of the retention, in the amount of $42,000;