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Cappello v Homebuilding Pty Ltd

Cappello v Homebuilding Pty Ltd

Case [2024] NSWCA 88 23 April 2024

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Judicial Review

Summary Judgment

Statutory Construction

Civil Procedure

Statutory Interpretation

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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…

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 Cappello v Homebuilding Pty Ltd

Details

AGLC: Cappello v Homebuilding Pty Ltd [2024] NSWCA 88
Case: [2024] NSWCA 88
Decision Date: 23 April 2024

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

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.

Citations

AGLC Citation

Cappello v Homebuilding Pty Ltd [2024] NSWCA 88

Most Recent Citation

Homebuilding Pty Ltd v Cappello (No. 3) [2024] NSWDC 407

Cases citing this decision · 3 of 3 shown

Litigation Fund WCX Pty Ltd v Homebuilding Pty Ltd
[2025] NSWCA 16 Para 5

…other). It is outlined in the primary judgment (see at [1]-[35]) by reference to a judgment in this Court last year ( Cappello v Homebuilding Pty Ltd [2024] NSWCA 88) and need only briefly be recounted here.…
Papoutsakis v Tsiakis
[2025] NSWSC 35 Para 7

…It is only in the clearest of cases that a court will make an order pursuant to r 13.4: Cappello v Homebuilding Pty Ltd [2024] NSWCA 88 at [4] per Kirk JA, citing Agar v Hyde (2000) 201 CLR 552 at [57] and General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 at 130.…
Homebuilding Pty Ltd v Cappello (No. 3)
[2024] NSWDC 407 Para 4

…indicates an extraordinarily protracted piece of litigation, which background was recently adverted to by Kirk JA in Cappello v Homebuilding Pty Ltd [2024] NSWCA 88. I adopt his Honour’s summary for present purposes.…

View all 3 citing cases →

Cases cited in this decision · 24 of 24 shown

Boensch v Transport for NSW
[2024] NSWCA 86 Para 7

…There are also reasons militating against seeking or granting summary dismissal in this Court: note Boensch v Transport for NSW [2024] NSWCA 86 at [18]-[20]. That being said, summary dismissal has been granted in this Court from time to time, for instance where the appeal was incompetent because the litigant neede…
Fong bhnf Fong v Weller
[2024] NSWCA 46 Para 13

…tatutory scheme relating to assessment of legal costs is complex. This Court has recently summarised aspects of the scheme in Fong BHNF Fong v Weller [2024] NSWCA 46 at [15]-[30].…
Cappello v Homebuilding Pty Ltd (formerly known as Hammond & Simonds NSW Pty Ltd) (No 2)
[2023] FCA 1205 Para 20

…o a further costs dispute, determined substantially against the plaintiffs by Katzmann J in the Federal Court: Cappello v HomeBuilding Pty Ltd (No 2) [2023] FCA 1205. It is not necessary to say anything more about that line of litigation as it is not involved in the dispute before this Court.…
HomeBuilding Pty Ltd (formerly known as Hammond & Simonds Pty Ltd ABN 61 162 746 929) v Cappello
[2023] NSWDC 338 Para 23

…ct Court granting a stay of execution of the District Court Order. That stay was lifted in August 2023 by Abadee DCJ: Homebuilding Pty Ltd v Cappello [2023] NSWDC 338. His Honour there noted that it appeared that the plaintiffs “have exhausted their avenues to appeal the decisions which led to the making of the” Di…
Cappello v HomeBuilding Pty Ltd
[2023] NSWCA 109 Para 19

…iffs then sought judicial review of Gibson DCJ’s decision in this Court. That application was rejected in May 2023: Cappello v HomeBuilding Pty Ltd [2023] NSWCA 109. The plaintiffs were ordered to pay the costs of the defendant and its director on an indemnity basis.…
Cappello v Homebuilding Pty Ltd (No.2)
[2023] NSWDC 54 Para 18

…r the plaintiffs to pay the defendant’s costs by way of a gross sum costs order in the amount of $26,449.40: Cappello v Homebuilding Pty Ltd (No 2) [2023] NSWDC 54.…
Cappello v HomeBuilding Pty Ltd
[2022] NSWDC 725 Para 18

…review panel to the District Court, pursuant to s 89 of the LPULAA. In December 2022 Gibson DCJ dismissed the appeal: Cappello v Homebuilding Pty Ltd [2022] NSWDC 725. In March 2023, her Honour made an order for the plaintiffs to pay the defendant’s costs by way of a gross sum costs order in the amount of $26,449.4…
Cappello v Lyons
[2022] NSWDC 258

…e Number(s): 2024/00055502 Publication restriction: Nil Decision under appeal Court or tribunal: District Court Citation: [2022] NSWDC 258 Date of Decision: 12 July 2022 Before: Abadee DCJ File Number(s): 2021/00115214…
Fordyce v Leung in her capacity as Executrix of the Estate of the late Robert Ho
[2021] NSWCA 262 Para 42

…t registration cannot be appealed as though it were a court judgment: ibid at [50]; Doyle v Hall Chadwick [2007] NSWCA 159 at [47]; Fordyce v Leung [2021] NSWCA 262 at [17].…
Cappello v Hammond & Simonds NSW Pty Ltd
[2021] NSWCA 57 Para 12

…The plaintiffs appealed the decisions of Ball J. In April 2021 this Court allowed the appeal in part: Cappello v Hammond & Simonds NSW Pty Ltd [2021] NSWCA 57. The Court reduced the amount the plaintiffs were required to pay to the defendant to $50,097.32. The appeal was otherwise dismissed, with the respondents o…
Cappello v Hammond & Simonds NSW Pty Ltd (No 2)
[2020] NSWSC 1199 Para 11

…equently ordered the plaintiffs to pay costs of the defendant and its director on an indemnity basis: Cappello v Hammond & Simonds NSW Pty Ltd (No 2) [2020] NSWSC 1199.…
Cappello v Hammond & Simonds NSW Pty Ltd
[2020] NSWSC 1021 Para 11

…a judgment in August 2020 which, in the net result, ordered the plaintiffs to pay the defendant $76,510.68: Cappello v Hammond & Simonds NSW Pty Ltd [2020] NSWSC 1021. His Honour subsequently ordered the plaintiffs to pay costs of the defendant and its director on an indemnity basis: Cappello v Hammond & Simonds NS…
Cavar v Department of Human Services (Comcover Insurance and Compensation Department)
[2016] NSWCA 195 Para 7

…from time to time, for instance where the appeal was incompetent because the litigant needed leave to appeal (eg Cavar v Department of Human Services [2016] NSWCA 195) or because the relief sought was misguided because it is not open to seek judicial review of the decision of a Supreme Court judge ( Pi v Zhou ).…
Trad v Harbour Radio Pty Ltd
[2016] NSWCA 80 Para 43

…equently been doubted, and the wording of r 36.10 was amended in response to the question raised about its validity: see Trad v Harbour Radio Pty Ltd [2016] NSWCA 80 at [42]-[44]. Basten JA, speaking for the Court, there said the following (citations omitted):…
Pi v Zhou
[2016] NSWCA 24 Para 5

…3.4 is a cause specified in the rules. And the reference to “other proceeding” encompasses an application for judicial review: note Pi v Zhou [2016] NSWCA 24 at [7]-[8].…
Calandra v Murden
[2015] NSWCA 231 Para 45

…The situation was summarised by Beazley P, Meagher and Leeming JJA in Calandra v Murden [2015] NSWCA 231, the year before Trad was decided, speaking of the predecessor to s 70(5):…
Leach v The Nominal Defendant (QBE Insurance (Australia) Ltd) (No 2)
[2014] NSWCA 391 Para 51

…h something of the character of being frivolous or vexatious for that to be the case: Leach v Nominal Defendant (QBE Insurance) (Aust) Limited (No 2) [2014] NSWCA 391 at [50]-[51]. This is such case, for the reasons set out above. In the circumstances of this case the offer constituted a genuine offer of compromise…
Frumar v The Owners of Strata Plan 36957
[2010] NSWCA 172 Para 31

…th respect to the Supreme Court proceedings. The argument was said to be founded on certain things said in Frumar v Owners of Strata Plan 36957 [2010] NSWCA 172.…
Spencer v Commonwealth of Australia
[2010] HCA 28 Para 4

…41; (2000) 201 CLR 552 at [57]; Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256 at [44]-[46]; Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 at [24]. That being said, “[a]rgument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the pl…
Doyle v Hall Chadwick
[2007] NSWCA 159 Para 42

…ng a judgment of the relevant court is that registration cannot be appealed as though it were a court judgment: ibid at [50]; Doyle v Hall Chadwick [2007] NSWCA 159 at [47]; Fordyce v Leung [2021] NSWCA 262 at [17].…
Batistatos v Roads and Traffic Authority of New South Wales
[2006] HCA 27 Para 4

…owed to go to trial in the ordinary way: see eg Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 at [57]; Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256 at [44]-[46]; Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 at [24]. That being said, “[a]rgument, perhaps even of an…
Khoury v Hiar
[2006] NSWCA 47 Para 44

…essed in Frumar that registered costs determinations were enforceable as though they were judgments of the relevant court; note further Khoury v Hiar [2006] NSWCA 47 at [44].…
Agar v Hyde
[2000] HCA 41 Para 4

…res a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way: see eg Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 at [57]; Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256 at [44]-[46]; Spencer v Commonwealth [2…
General Steel Industries Inc v Commissioner for Railways (NSW)
[1964] HCA 69 Para 4

…the case of the plaintiff is so clearly untenable that it cannot possibly succeed”: General Steel Industries Inc v Commissioner for Railway (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 130. In fact, oral argument in this case was very brief.…

Legislation cited in this decision · 11

Uniform Civil Procedure Rules 2005 (NSW)
13.4, 36.10, 51.45(2), 59.4(c) 5 mentions (from Para 3)
Civil Procedure Act 2005 (NSW)
133, 135 3 mentions (from Para 1)
Legal Profession Act 1987 (NSW)
208J(3), 368(5) 3 mentions (from Para 36)
Administrative Decisions Tribunal Act 1997 (NSW)
82A, 82A) 2 mentions (from Para 35)
Civil and Administrative Tribunal Act 2013 (NSW)
78 2 mentions (from Para 35)
Foreign Judgments Act 1991 (Cth)
6 2 mentions (from Para 35)
Industrial Relations Act 1996 (NSW)
182 2 mentions (from Para 35)
Legal Profession Uniform Law Application Act 2014 (Vic)
70(1) 2 mentions (from Para 14)
Legal Profession Act 2004 (Vic)
1 mention (from Para 36)
Real Property Act 1900 (NSW)
1 mention
Supreme Court Act 1970 (NSW)
1 mention (from Para 5)

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…