PARTIES: Brendan Alex Bull (First Appellant) Kathleen Ann Bull (Second Appellant) Heny Xueheng Lee (Respondent)
JUDGMENT OF: Allsop P Campbell JA Young JA
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 18/06
LOWER COURT JUDICIAL OFFICER: Delaney DCJ
LOWER COURT DATE OF DECISION: 4 June 2008
COUNSEL: D Ash (Appellants) FS Santisi (Respondent)
SOLICITORS: Caldwell Martin Cox, Camden (Appellants) JN Legal, Bankstown (Respondent)
CATCHWORDS: PROCEDURE - appeal - leave to make submissions on a particular topic - how submissions made beyond the scope of the leave granted are to be dealt with - APPEAL - when leave granted to file Notice of Contention - whether leave to be granted after judgment delivered to raise fresh arguments - LEGAL PROFESSION - costs order - written submissions made beyond scope of leave granted - circumstances where costs order against practitioner is appropriate for making written submissions beyond scope of leave granted - PROCEDURE - costs - interest - pre-judgment interest on debt to be calculated at rate of interest provided by debt - DAMAGES - debt - where interest on a monthly balance amounts to charging interest on interest
DECISION: Orders amended to include interest calculation and effective date of judgment. Leave to make additional submissions refused. Respondent to pay costs concerning the additional submissions. Respondent's counsel given opportunity to make submissions about why he personally should not bear costs.
JUDGMENT:
IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL
CA 40275/08 DC 18/06
ALLSOP P CAMPBELL JA YOUNG JA
11 NOVEMBER 2009
BRENDAN ALEX BULL & ANOR v HENY XUEHENG LEE (No 2)
Judgment
THE COURT: The Court delivered judgment in this matter on 28 July 2009: Bull v Lee [2009] NSWCA 215 (“the Earlier Judgment”). The case related to whether any amount remained unpaid under an Agreement for Sale of a share in a business, and if so, what that amount was.
The Court construed the agreement, and provided a draft calculation of the amount that, in accordance with the construction that the Court held was correct, would have been owing as at November 2004. The orders of the Court allowed the appeal, set aside orders made in the court below, and gave the following directions (at [54]):
“(3)Direct the solicitors for the parties to confer and, if agreement is possible, provide to the Court within 14 days of the date of delivery of these reasons, Short Minutes of Order providing for a judgment in favour of the Appellants, as at a date approximating the date of submission of those Short Minutes of Order, in a sum calculated as the amount owing, in accordance with the principles set out…
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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AGLC
Bull v Lee (No 2) [2009] NSWCA 362
Case
[2009] NSWCA 362
Decision Date
CaseChat Overview and Summary
This matter concerned an appeal before the Court of Appeal of New South Wales, presided over by Allsop P, Campbell and Young JJA. The dispute involved an appeal by the Appellants against a previous decision, and subsequent applications and submissions made by the Respondent. The Court was required to determine the effective date of its orders, the appropriate calculation of pre-judgment interest on a debt, and the costs associated with submissions made beyond the scope of granted leave.
The Court's reasoning focused on clarifying its orders and addressing the improper conduct of the Respondent's legal representatives. It was determined that pre-judgment interest on the debt should be calculated at the rate stipulated by the debt itself, and that the effective date of the judgment should be clearly defined. Crucially, the Court considered whether the Respondent's counsel should personally bear the costs of submissions made outside the scope of leave granted, and whether to grant leave for further submissions after judgment.
The Court revoked and reissued its initial orders to ensure clarity regarding the appeal's disposition. It allowed the appeal, set aside the orders of the court below, and entered judgment in favour of the Appellants for a specified amount, including interest calculated at 8.5% per annum from 1 December 2004 to 13 August 2009. The judgment was to take effect on 13 August 2009. The Respondent was ordered to pay the Appellant's costs in the court below, subject to a cap. The Respondent's application for leave to make additional submissions was refused, and the Respondent was ordered to pay the Appellant's costs concerning that application. Furthermore, counsel for the Respondent was directed to file submissions within 21 days as to why he should not personally bear the costs of certain improper written submissions and a related notice of motion.
Orders
Orders of the court
Orders amended to include interest calculation and effective date of judgment. Leave to make additional submissions refused. Respondent to pay costs concerning the additional submissions. Respondent's counsel given opportunity to make submissions about why he personally should not bear costs.
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
So that there is no room for argument about the effective date of this Court’s orders relating to the appeal, and for the convenience of being able to find all the Court’s orders disposing of the appeal in the one place, we propose to revoke the first two orders made by the Court on 28 July 2009, but to make them again in identical terms.Costs of the Post-Judgment Applications To the extent to which the parties made submissions pursuant to direction (4) in the Earlier Judgment, the costs of so doing are part of the general costs of the appeal. However, paras [1]-[28] of the Respondent’s Initial Submissions, the costs of paras [1]-[41] of the Respondent’s Consolidated Submissions, and the costs of the Notice of Motion filed 18 August 2009 are in a different position. Counsel for the Appellant provided written submissions on 14 September 2009 dealing solely with those issues. As the application has failed, it is appropriate that the Appellants have an order for costs concerning the Notice of Motion. We propose to make such an order. There remains a question of who, as between the Respondent and her counsel, should bear those costs. For the reasons given at paras [6]-[9], the making of the submissions in paras [1]-[28] of the Respondent’s Initial Submissions was improper. The attempt to regularise the putting of those submissions, by filing the Notice of Motion, has failed, and was always doomed to fail. As we have said, we propose to make an order that the Appellants have the costs of the Notice of Motion. The making of that order will bring to an end the Appellants’ involvement in these proceedings. We also propose to give counsel for the Respondent the opportunity to put before the Court written submissions, if he chooses, as to why the Court should not make a supplementary order requiring that he bear personally the costs of paras [1]-[28] of the Respondent’s Initial Submissions, and the costs of the Notice of Motion, including the costs of paras[1]-[41] of the Respondent’s Consolidated Submissions.Orders The orders of the Court are:(1)That orders 1 and 2 made 28 July 2009 are revoked.(2) That the appeal be allowed.(3) That the orders made in the court below be set aside.(4)That there be judgment in the court below in favour of the Appellants in an amount of $25,461.91 (comprising a sum due at 30 November 2004 of $18,189.04 together with interest of $7,272.87 calculated at 8.5% per annum from 1 December 2004 to 13 August 2009).(5)That the judgment referred to in order (4) above take effect on 13 August 2009.(6)That the Respondent pay the Appellant’s costs in the court below, assessed in an amount not to exceed the amount that would have been payable if the proceedings had been brought in a Local Court of New South Wales.(7)That the Respondent have a certificate under section 6(1) Suitors’ Fund Act 1951 if otherwise qualified, with no other order as to the parties’ costs of the appeal.(8)Notice of Motion filed 18 August 2009 dismissed with costs.(9)Direct counsel for the Respondent to file, within 21 days of the date of this judgment, and provide a copy to each judge who heard the appeal, any submissions he might wish to make as to why he should not bear personally the costs of paras [1]-[28] of the Respondent’s written submissions filed 13 August 2009, and of the Notice of Motion filed 18 August 2009, including the costs of paras [1]-[41] of the Respondent’s Consolidated Submissions.(10) Reserve further consideration of the matter identified in (9).**********