Cappello v Homebuilding Pty Ltd

Case [2024] NSWCA 88


Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Cappello v Homebuilding Pty Ltd [2024] NSWCA 88
Hearing dates: 15 April 2024
Date of orders: 23 April 2024
Decision date: 23 April 2024
Before: Kirk JA
Decision:

1. The applicants’ summons seeking judicial review is dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules.

2. The applicants are to pay the first respondent’s costs of the proceedings in this Court on an indemnity basis.

Catchwords:

PRACTICE AND PROCEDURE – Costs orders – Order made under s 135 of the Civil Procedure Act 2005 (NSW) – Whether registered certificates of determination of costs under s 70(5) of the Legal Profession Uniform Law Application Act 2014 (NSW) are “judgments” of the Court – Registered certificates of determination of costs are judgments – Respondents’ argument contrary to the statutory scheme

SUMMARY JUDGMENT – Judicial review application – r 13.4 Uniform Civil Procedure Rules 2005 (NSW) – Action disclosing no reasonable basis

Legislation Cited:

Administrative Decisions Tribunal Act 1997 (NSW) s 82A

Civil and Administrative Tribunal Act 2013 (NSW) s 78

Civil Procedure Act 2005 (NSW) ss 133, 135

Foreign Judgments Act 1991 (Cth) s 6

Industrial Relations Act 1996 (NSW) s 182

Legal Profession Act 1987 (NSW) ss 208J(3), 368(5)

Legal Profession Uniform Law Application Act 2014 (NSW) s 70(1)

Uniform Civil Procedure Rules 2005 (NSW) rr 13.4, 36.10, 51.45(2), 59.4(c)

Cases Cited:

Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552

Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256

Boensch v Transport for NSW [2024] NSWCA 86

Calandra v Murden [2015] NSWCA 231

Cappello v Homebuilding Pty Ltd (No 2) [2023] NSWDC 54

Cappello v Homebuilding Pty Ltd [2022] NSWDC 725

Cappello v Hammond & Simonds NSW Pty Ltd (No 2) [2020] NSWSC 1199

Cappello v Hammond & Simonds NSW Pty Ltd [2020] NSWSC 1021

Cappello v Hammond & Simonds NSW Pty Ltd [2021] NSWCA 57

Cappello v HomeBuilding Pty Ltd (No 2) [2023] FCA 1205

Cappello v HomeBuilding Pty Ltd [2023] NSWCA 109

Cappello v HomeBuilding Pty Ltd [2023] NSWCA 109

Cavar v Department of Human Services [2016] NSWCA 195

Doyle v Hall Chadwick [2007] NSWCA 159

Fong BHNF Fong v Weller [2024] NSWCA 46

Fordyce v Leung [2021] NSWCA 262

Frumar v Owners of Strata Plan 36957 [2010] NSWCA 172

General Steel Industries Inc v Commissioner for Railway (NSW) [1964] HCA 69; (1964) 112 CLR 125

Homebuilding Pty Ltd v Cappello [2023] NSWDC 338

Khoury v Hiar [2006] NSWCA 47

Leach v Nominal Defendant (QBE Insurance) (Aust) Limited (No 2) [2014] NSWCA 391

Pi v Zhou [2016] NSWCA 24

Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118

Trad v Harbour Radio Pty Ltd [2016] NSWCA 80

Category:Principal judgment
Parties:

Rosario Cappello (First Applicant)
Maria Cappello (Second Applicant)

Homebuilding Pty Ltd (Respondent)
Representation:

Counsel:

R Cappello (First and Second Applicants)
D O’Conner (Respondent)

Solicitors:

Self-represented (First and Second Applicants)
Adams & Partners…

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Details
AGLC
Cappello v Homebuilding Pty Ltd [2024] NSWCA 88
Case
[2024] NSWCA 88
Decision Date

CaseChat Overview and Summary

The applicants sought judicial review of a decision by Homebuilding Pty Ltd, the first respondent. The dispute concerned costs orders made under section 135 of the *Civil Procedure Act 2005* (NSW). The applicants argued that registered certificates of determination of costs under section 70(5) of the *Legal Profession Uniform Law Application Act 2014* (NSW) were not "judgments" of the Court. The matter was heard by Kirk JA.

The primary legal issue before the Court was whether registered certificates of determination of costs, issued under the *Legal Profession Uniform Law Application Act 2014* (NSW), constitute "judgments" for the purposes of the *Civil Procedure Act 2005* (NSW). A secondary issue arose concerning the applicants' summons for judicial review, specifically whether the action disclosed no reasonable basis, as contemplated by rule 13.4 of the *Uniform Civil Procedure Rules 2005* (NSW).

Kirk JA determined that registered certificates of determination of costs are indeed judgments of the Court. His Honour reasoned that this interpretation aligns with the statutory scheme and that the respondents' argument to the contrary was unsustainable. Consequently, the applicants' summons seeking judicial review was dismissed pursuant to rule 13.4 of the *Uniform Civil Procedure Rules 2005* (NSW) as the action disclosed no reasonable basis.

The applicants were ordered to pay the first respondent's costs of the proceedings in the Court on an indemnity basis.

Orders

Orders of the court

1. The applicants’ summons seeking judicial review is dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules.

2. The applicants are to pay the first respondent’s costs of the proceedings in this Court on an indemnity basis.

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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