C and E Critharis Constructions Pty Ltd v Cubic Metre Pty Ltd (No 2) - [2021] NSWCA 60

Court of Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: C & E Critharis Constructions Pty Ltd v Cubic Metre Pty Ltd (No 2) [2021] NSWCA 60
Hearing dates: On the papers
Decision date: 30 April 2021
Before: Macfarlan JA; McCallum JA
Decision:
Respondent’s notice of motion dismissed

Catchwords:
JUDGMENTS AND ORDERS – costs order made in chambers under special arrangements during the COVID-19 pandemic – whether order made “in the absence of a party” for the purposes of r 36.16(2)(b) of the Uniform Civil Procedure Rules 2005 (NSW)
COSTS – application for indemnity costs order –applicant did not accept offer of compromise – offer required applicant to capitulate with no compromise as to costs or otherwise offered – respondent not entitled to indemnity costs

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW), rr 20.26, 36.16(2)(b), 36.16(3A), 42.15A

Cases Cited:
Aktas v Westpac Banking Corporation Ltd (No 2) (2010) 241 CLR 570; [2010] HCA 47
Aukuso v Tahan (No 2) [2018] NSWCA 302
C & E Critharis Constructions Pty Ltd v Cubic Metre Pty Ltd [2020] NSWCA 348
Foundas Arambatzis (No 2) [2020] NSWCA 51
Kable v New South Wales (No 2) [2012] NSWCA 361
Taheri v Vitek (No 2) [2014] NSWCA 344

Texts Cited:
Ritchie’s Uniform Civil Procedure NSW

Category: Costs
Parties: C & E Critharis Constructions Pty Ltd (Applicant)
Cubic Metre Pty Ltd (Respondent)
Representation:
Counsel:
R K Weaver (Applicant)
B Webster (Respondent)
Solicitors:
Konstan Lawyers (Applicant)
Just Dispute Resolution (Respondent)

File Number(s): 2020/159548; 2020/284172
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law

Citation:

[2020] NSWSC 479

Date of Decision:

1 May 2020

Before:

Adamson J

File Number(s):

2019/235538

Judgment

THE COURT: In these proceedings C & E Critharis Constructions Pty Ltd (“the applicant”) filed both a summons seeking leave to appeal and a notice of appeal (the latter being filed on the alternative assumption that there was no requirement for leave). In our principal judgment, we concluded that the purported appeal as of right was incompetent and that the application for leave to appeal should be dismissed because the proposed appeal had no reasonable prospects of success: C & E Critharis Constructions Pty Ltd v Cubic Metre Pty Ltd [2020] NSWCA 348. Orders giving effect to these conclusions were made in chambers on 22 December 2020 and published on the Court’s computerised record system, JusticeLink, on that day. The orders are accordingly taken to have been entered on that day: r 36.11 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”). The orders were as follows:

Dismiss the Notice of Appeal on the ground that it is incompetent.
Dismiss the application for leave to appeal.
Order the applicant to pay the respondent’s costs of the application for leave to appeal and the appeal.

By notice of motion dated 22 January 2021, but not filed until 1 February 2021, the respondent seeks to have the costs order varied to award it…

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: [2021] NSWCA 60
Decision Date: 30 April 2021

CaseChat Overview and Summary

The dispute before the New South Wales Court of Appeal concerned an application by Cubic Metre Pty Ltd (the respondent) for an indemnity costs order against C and E Critharis Constructions Pty Ltd (the applicant). The application arose from a previous costs order made in chambers under special arrangements during the COVID-19 pandemic.

The primary legal issue was whether the costs order previously made was one granted "in the absence of a party" for the purposes of rule 36.16(2)(b) of the Uniform Civil Procedure Rules 2005 (NSW). A secondary issue was whether the respondent was entitled to an indemnity costs order, given that the applicant had not accepted an offer of compromise which, according to the respondent, required the applicant to capitulate without any compromise on costs or other matters.

The Court of Appeal held that the costs order in question was not made in the absence of a party, as the applicant had been notified of the hearing and had the opportunity to attend. Furthermore, the Court found that the respondent was not entitled to an indemnity costs order. This was because the offer of compromise made by the respondent was not a genuine offer to compromise, as it demanded complete capitulation from the applicant without any concession on costs or other issues.

Consequently, the respondent’s notice of motion seeking an indemnity costs order was dismissed.

Orders

Orders of the court

Respondent’s notice of motion dismissed

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:	C & E Critharis Constructions Pty Ltd v Cubic Metre Pty Ltd (No 2) [2021] NSWCA 60
Hearing dates:	On the papers
Decision date:	30 April 2021
Before:	Macfarlan JA; McCallum JA
Decision:	Respondent’s notice of motion dismissed
Catchwords:	JUDGMENTS AND ORDERS – costs order made in chambers under special arrangements during the COVID-19 pandemic – whether order made “in the absence of a party” for the purposes of r 36.16(2)(b) of the Uniform Civil Procedure Rules 2005 (NSW) COSTS – application for indemnity costs order –applicant did not accept offer of compromise – offer required applicant to capitulate with no compromise as to costs or otherwise offered – respondent not entitled to indemnity costs
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), rr 20.26, 36.16(2)(b), 36.16(3A), 42.15A
Cases Cited:	Aktas v Westpac Banking Corporation Ltd (No 2) (2010) 241 CLR 570; [2010] HCA 47 Aukuso v Tahan (No 2) [2018] NSWCA 302 C & E Critharis Constructions Pty Ltd v Cubic Metre Pty Ltd [2020] NSWCA 348 Foundas Arambatzis (No 2) [2020] NSWCA 51 Kable v New South Wales (No 2) [2012] NSWCA 361 Taheri v Vitek (No 2) [2014] NSWCA 344
Texts Cited:	Ritchie’s Uniform Civil Procedure NSW
Category:	Costs
Parties:	C & E Critharis Constructions Pty Ltd (Applicant) Cubic Metre Pty Ltd (Respondent)
Representation:	Counsel: R K Weaver (Applicant) B Webster (Respondent) Solicitors: Konstan Lawyers (Applicant) Just Dispute Resolution (Respondent)
File Number(s):	2020/159548; 2020/284172
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2020] NSWSC 479 Date of Decision: 1 May 2020 Before: Adamson J File Number(s): 2019/235538