Cameron v Ofria - [2007] NSWCA 37

New South Wales

Court of Appeal

CITATION: CAMERON v OFRIA & ORS. [2007] NSWCA 37
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 27/02/07

JUDGMENT DATE:
27 February 2007

JUDGMENT OF: Beazley JA at 20,22; Ipp JA at 1; Campbell JA at 21

EX TEMPORE JUDGMENT DATE: 27 February 2007

DECISION: Appeal upheld; Set aside orders of Phegan DCJ to the extent I have indicated; Order that Mr Cameron and Mr. Ofria pay their own costs; No order made for costs as regards Mrs Ofria; Order that a Suitor's Fund certificate issue to Mr and Mrs Ofria if they are otherwise entitled

CATCHWORDS: COSTS – interlocutory application – whether appropriate to make order for costs to be paid before conclusion of proceedings – whether trial judge erred in exercising his discretion by ordering that the appellant should not be given a date for hearing unless and until the appellant pays the respondent’s costs of the cross-claim – discretion exercised for penal purposes – trial judge failed to consider affidavit material of the appellant when exercising his discretion – order set aside

CASES CITED: Fiduciary Limited v Morningstar Research Pty Limited (2002) 55 NSWLR 1
Oshlack v Richmond River Council (1998) 193 CLR 72

PARTIES: Robert William Cameron (Appellant)
Roland Ofria and Marlene Ofria (First Respondents)
Bruce Vernon Dennis (Second Respondent)

FILE NUMBER(S): CA 40047/06

COUNSEL: D. Rofe QC (Appellant)
Roland Ofria (in person)
Marlene Ofria (in person) (first respondents)
No appearance (third respondent)

SOLICITORS: McLaughlin & Riordan (Appellant)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 166/2005

LOWER COURT JUDICIAL OFFICER: Phegan DCJ

LOWER COURT DATE OF DECISION: 12/12/2005

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA040047/06

BEAZLEY JA

IPP JA

CAMPBELL JA

TUESDAY 27 FEBRUARY 2007

ROBERT WILLIAM CAMERON v ROLAND OFRIA

AND TWO ORS

JUDGMENT

1 IPP JA: This appeal concerns a costs order made by Phegan DCJ in an interlocutory application. The appellant, Mr Cameron, and the respondents, Mr and Mrs Ofria, were parties to that application. By that application, Mr and Mrs Ofria sought to strike out Mr Cameron's cross-claims against them. They were successful and his Honour awarded the costs of the application to them. That order is not now under challenge. His Honour, in addition, ordered that Mr Cameron should not be given a date for the hearing of the trial between him and Mr and Mrs Ofria until the costs of the application were paid. Mr Cameron seeks to set this order aside.

2 At one point in the appeal Mr Cameron claimed that all the orders made by Phegan DCJ should be set aside. On the morning of the appeal, however, Mr Rofe QC (who appeared for Mr Cameron) informed the Court that the only relief that Mr Cameron now sought was the overturning of the order that required Mr Cameron to pay the costs before obtaining a trial date.

3 I am satisfied…

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 Cameron v Ofria

Details

AGLC: Cameron v Ofria [2007] NSWCA 37
Case: [2007] NSWCA 37
Decision Date: 27 February 2007

CaseChat Overview and Summary

The appeal concerned an interlocutory costs order made by the District Court of New South Wales. The appellant, Mr Cameron, sought to have the order set aside, which had directed that he not be given a hearing date for his cross-claim unless and until he paid the respondent's costs of that cross-claim.

The central legal issue before the Court of Appeal was whether the trial judge had erred in exercising his discretion by making such an order. Specifically, the court considered whether the discretion had been exercised for penal purposes and whether the trial judge had failed to consider relevant affidavit material presented by the appellant when making the decision.

The Court of Appeal found that the trial judge had erred in his exercise of discretion. The court determined that the order was punitive in nature and that the trial judge had failed to consider the appellant's affidavit material, which was relevant to the question of whether the costs order should be made. Consequently, the court upheld the appeal and set aside the orders of the District Court to the extent that they directed the appellant to pay the respondent's costs of the cross-claim as a condition precedent to obtaining a hearing date. The court ordered that Mr Cameron and Mr Ofria pay their own costs, with no order made for costs concerning Mrs Ofria. A Suitor's Fund certificate was to be issued to Mr and Mrs Ofria if they otherwise qualified.

Orders

Orders of the court

Appeal upheld; Set aside orders of Phegan DCJ to the extent I have indicated; Order that Mr Cameron and Mr. Ofria pay their own costs; No order made for costs as regards Mrs Ofria; Order that a Suitor's Fund certificate issue to Mr and Mrs Ofria if they are otherwise entitled

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	CAMERON v OFRIA & ORS. [2007] NSWCA 37 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	27/02/07
JUDGMENT DATE:	27 February 2007
JUDGMENT OF:	Beazley JA at 20,22; Ipp JA at 1; Campbell JA at 21
EX TEMPORE JUDGMENT DATE:	27 February 2007
DECISION:	Appeal upheld; Set aside orders of Phegan DCJ to the extent I have indicated; Order that Mr Cameron and Mr. Ofria pay their own costs; No order made for costs as regards Mrs Ofria; Order that a Suitor's Fund certificate issue to Mr and Mrs Ofria if they are otherwise entitled
CATCHWORDS:	COSTS – interlocutory application – whether appropriate to make order for costs to be paid before conclusion of proceedings – whether trial judge erred in exercising his discretion by ordering that the appellant should not be given a date for hearing unless and until the appellant pays the respondent’s costs of the cross-claim – discretion exercised for penal purposes – trial judge failed to consider affidavit material of the appellant when exercising his discretion – order set aside
CASES CITED:	Fiduciary Limited v Morningstar Research Pty Limited (2002) 55 NSWLR 1 Oshlack v Richmond River Council (1998) 193 CLR 72
PARTIES:	Robert William Cameron (Appellant) Roland Ofria and Marlene Ofria (First Respondents) Bruce Vernon Dennis (Second Respondent)
FILE NUMBER(S):	CA 40047/06
COUNSEL:	D. Rofe QC (Appellant) Roland Ofria (in person) Marlene Ofria (in person) (first respondents) No appearance (third respondent)
SOLICITORS:	McLaughlin & Riordan (Appellant)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	166/2005
LOWER COURT JUDICIAL OFFICER:	Phegan DCJ
LOWER COURT DATE OF DECISION:	12/12/2005