Bookarelli Pty Ltd v Katanga Developments Pty Ltd (No 2) - [2017] NSWCA 94

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Bookarelli Pty Ltd v Katanga Developments Pty Ltd (No 2) [2017] NSWCA 94
Hearing dates: On the papers
Decision date: 11 May 2017
Before: Macfarlan JA, Payne JA, Sackville AJA
Decision:
In lieu of Order 2 made by this Court on 5 April 2017, order the applicant to pay the respondent’s costs of and incidental to the proceedings in this Court on an indemnity basis.

Catchwords: APPEAL – costs – applicant’s case not reasonably arguable – order for indemnity costs warranted
Legislation Cited:
Civil Procedure Act 2005 (NSW), s 98(1)
District Court Act 1973 (NSW), s 127(2)(b), (c)
Legal Profession Act 2004 (NSW), s 384(1)
Supreme Court Act 1970 (NSW), s 69
Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 42.2, 42.5(b), 51.45(1A), Pt 59
Cases Cited: Andrews v Barnes (1887) 39 Ch D 133
Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd (No 2) [2009] NSWCA 12
Bookarelli Pty Ltd v Katanga Developments Pty Ltd [2017] NSWCA 69
Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 801
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd [1988] FCA 364; 81 ALR 397
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1
NMFM Property Pty Ltd v Citibank Ltd (No 2) (2001) 109 FCR 77; [2001] FCA 480
Preston v Preston [1981] 3 WLR 619; [1982] 1 All ER 41
Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd [1991] FCA 225
Category: Costs
Parties:
Bookarelli Pty Ltd (Applicant)
Katanga Developments Pty Ltd (First Respondent)
His Honour Judge Hatzistergos (Second Respondent)
Representation:
Counsel:
N/A
Solicitors:
Thomas Booler & Co Lawyers (Applicant)
Cordato Partners (Respondents)

File Number(s): 2016/321143
Decision under appeal

Court or tribunal:

District Court of New South Wales

Date of Decision:

29 July 2016

Before:

Hatzistergos DCJ

File Number(s):

2015/274083

Judgment

THE COURT: The Court gave judgment in this appeal on 5 April 2017. [1] The following orders were made:

“1.   The Amended Summons filed on 8 December 2016 be dismissed.
2.    The applicant pay the respondent’s costs of the proceedings in this Court.
3.   Subject to any application as to costs that may be made by the respondent, the applicant file and serve written submissions within 14 days as to whether it should be ordered to pay the costs of the proceedings in this Court on an indemnity basis.”
1. Bookarelli Pty Ltd v Katanga Developments Pty Ltd [2017] NSWCA 69 (Principal Judgment).

The judgment gave the following reasons for making Order 3: [2]

“[54] … the Amended Summons is, in effect, Bookarelli’s third attempt to challenge the Costs Assessor’s determination. One of the consequences of the High Court’s decision in Kirk [v Industrial Court of New South Wales[3] ] is that even if a privative clause purports to preclude an appeal or application for review of a decision of a tribunal or inferior court, 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.

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Details

Case: [2017] NSWCA 94
Decision Date: 11 May 2017

CaseChat Overview and Summary

Bookarelli Pty Ltd (the applicant) appealed to the Court of Appeal of New South Wales against an order made by the primary judge. The dispute concerned the applicant's claim for an equitable lien over certain land, which was dismissed by the primary judge. The applicant sought to appeal this decision.

The Court of Appeal was required to determine whether the applicant's appeal had any reasonable prospect of success. Specifically, the court considered whether the grounds of appeal were so lacking in merit that they were not reasonably arguable, and consequently, whether an order for indemnity costs against the applicant was warranted.

The Court of Appeal found that the applicant's case was not reasonably arguable. The court's reasoning, though not detailed in the provided text, led to the conclusion that the appeal lacked substance. Accordingly, the court determined that the applicant should pay the respondent's costs of and incidental to the proceedings in the Court of Appeal on an indemnity basis. The court made an order in lieu of its previous order of 5 April 2017 to reflect this decision.

Orders

Orders of the court

In lieu of Order 2 made by this Court on 5 April 2017, order the applicant to pay the respondent’s costs of and incidental to the proceedings in this Court on an indemnity basis.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Bookarelli Pty Ltd v Katanga Developments Pty Ltd (No 2) [2017] NSWCA 94
Hearing dates:	On the papers
Decision date:	11 May 2017
Before:	Macfarlan JA, Payne JA, Sackville AJA
Decision:	In lieu of Order 2 made by this Court on 5 April 2017, order the applicant to pay the respondent’s costs of and incidental to the proceedings in this Court on an indemnity basis.
Catchwords:	APPEAL – costs – applicant’s case not reasonably arguable – order for indemnity costs warranted
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 98(1) District Court Act 1973 (NSW), s 127(2)(b), (c) Legal Profession Act 2004 (NSW), s 384(1) Supreme Court Act 1970 (NSW), s 69 Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 42.2, 42.5(b), 51.45(1A), Pt 59
Cases Cited:	Andrews v Barnes (1887) 39 Ch D 133 Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd (No 2) [2009] NSWCA 12 Bookarelli Pty Ltd v Katanga Developments Pty Ltd [2017] NSWCA 69 Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 801 Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd [1988] FCA 364; 81 ALR 397 Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 NMFM Property Pty Ltd v Citibank Ltd (No 2) (2001) 109 FCR 77; [2001] FCA 480 Preston v Preston [1981] 3 WLR 619; [1982] 1 All ER 41 Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd [1991] FCA 225
Category:	Costs
Parties:	Bookarelli Pty Ltd (Applicant) Katanga Developments Pty Ltd (First Respondent) His Honour Judge Hatzistergos (Second Respondent)
Representation:	Counsel: N/A Solicitors: Thomas Booler & Co Lawyers (Applicant) Cordato Partners (Respondents)
File Number(s):	2016/321143
Decision under appeal	Court or tribunal: District Court of New South Wales Date of Decision: 29 July 2016 Before: Hatzistergos DCJ File Number(s): 2015/274083