Capar v SPG Investments Pty Ltd t/as Lidcombe Power Centre (No 2)

[2021] NSWCA 77

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Capar v SPG Investments Pty Ltd t/as Lidcombe Power Centre (No 2) [2021] NSWCA 77

Hearing dates:

On the papers

Date of orders:

4 May 2021

Decision date:

04 May 2021

Before:

Basten JA; McCallum JA; Emmett AJA

Decision:

The following orders are to be entered forthwith:

(1)   The first and second respondents are to pay the appellant’s costs of the proceedings in this Court and the Court below.

(2)   No order as to the costs as between the appellant and the third respondent in this Court or the Court below.

(3)   No order as to the costs of the cross-claims in the Court below.

Catchwords:

PRACTICE AND PROCEDURE – appeal – final orders – orders by consent – orders in default of agreement

Category:

Costs

Parties:

Gengiz Capar (Appellant)
SPG Investments Pty Ltd t/as Lidcombe Power Centre (First Respondent)
Business Protection Group Pty Ltd (Second Respondent)
The Workers Compensation Nominal Insurer (Third Respondent)

Representation:

Solicitors:
Premier Lawyers (Appellant)
Vardanega Roberts (First Respondent)
Clyde & Co (Second Respondent)
Sparke Helmore (Third Respondent)

File Number(s):

2019/159993

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law

Citation:

[2019] NSWSC 507

Date of Decision:

13 May 2019

Before:

Bellew J

File Number(s):

2013/78535

Judgment

1. THE COURT: On 22 December 2020 the Court delivered its principal judgment in this matter. Orders were made allowing the appeal and setting aside orders 1-4 made in the Common Law Division. The Court also declared that the first, second and third respondents were liable in damages to the appellant. The parties were directed to confer to determine the extent to which agreement could be reached as to the quantum of damages, the apportionment of liability and final orders.

2. On 12 February 2021 consent orders were made providing for judgment for the appellant against each of the three respondents in fixed sums. The orders noted that the third respondent had satisfied its judgment and, for reasons which are obscure, the appellant directed the first respondent to pay an amount approximately double the judgment against the third respondent to the third respondent. No agreement was then reached with respect to costs, which were referred to in the following terms:

7.   Note the Appellant is entitled to the payment of his costs in this proceeding and in the Court below with the parties to propose orders regarding costs within 14 days.

8.   Note the agreement of the Respondents that they will bear their own costs of the cross-claims filed in the proceeding below.

3. On 19 February 2021 the appellant emailed the Registrar in the following terms:

“The parties were ordered to agree final orders by today and advise you of same.

It is agreed that the first and second Respondents are to pay the Appellant’s costs of the proceedings in this Court and the Court below. At present there is no agreement between the Appellant and the 3rd Respondent in regards to costs orders and we request a further 14 days to propose final orders as the parties are currently attempting to resolve same.”

4. That request was granted but, despite several extensions, produced no result. On 31 March 2021 a directions hearing was convened which resulted in the following orders:

The Court directs that the following parties file written submissions of no more than 5 pages:

(1)   The appellant, dealing with the issues of the costs between him and the third respondent, by 5pm Friday, 9 April 2021.

(2)   The third respondent to file submissions in respect of costs, by 5pm Friday, 16 April 2021.

(3)   The first and second respondents, together with any reply by the appellant, by 5pm Friday, 23 April 2021.

(4)   The costs of today to be costs in the proceedings.

The appellant failed to comply with the first direction.

5. On 13 April 2021 the Registrar advised the parties in the following terms:

“The Court notes that the appellant has failed to comply with the direction given by Basten JA on 31 March 2021.

The Court also notes that it was informed on 19 February 2021 that it had been agreed that the first and second and respondents are to pay the appellant’s costs of the proceedings in this Court and the Court below.

Unless I am notified of alternative consent orders within five days of this email the Court has directed that the following orders be entered:

(1)   The first and second respondents are to pay the appellant’s costs of the proceedings in this Court and in the Court below.

(2)   No order as to the costs as between the appellant and the third respondent in this Court or the Court below.

(3)   No order as to the costs of the cross-claims in the Court below.

I note that the entry of such orders will dispose of the outstanding issues in the proceedings. Those orders can only be varied by a notice of motion filed within 14 days of the entry of the orders: UCPR, r 36.16.”

6. On 19 April 2021 the first respondent advised the Registrar that it consented to proposed orders 1-3. As at 4 May 2021 no other party had responded.

7. The failure of the appellant and third respondent to comply with directions of the Court is troubling. Each party had been legally represented throughout the proceedings. Each party attended, remotely, the directions hearing held on 31 March 2021. In the circumstances, the proper course is to bring the proceedings to finality by directing the entry of the proposed orders set out in the Registrar’s email to the parties of 13 April 2021. The Court so orders.

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Decision last updated: 04 May 2021