Meagher JA at [1] Mitchelmore JA at [2] Simpson AJA at [53]
Decision:
(1) The Amended Summons is dismissed.
(2) The applicants are to pay the respondents’ costs of the application to be assessed on an indemnity basis
Catchwords:
COSTS – judicial review of District Court decision following appeal from costs assessor – whether applicants’ challenge wrongly described – whether findings an error of law on the face of the record – whether certain cases relied on in error – whether failure to consider applicants’ arguments and alleged implications under the Legal Profession Uniform Law 2014 (NSW) – whether evidence from bar table relied upon – no errors of law on the face of the record – Amended Summons dismissed
[This headnote is not to be read as part of the judgment]
The applicants, Rosario Cappello and Maria Cappello, were unsuccessful plaintiffs and cross-defendants in Supreme Court proceedings relating to building works. The Court entered judgment in favour of the first respondent in…
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
AGLC
Cappello v HomeBuilding Pty Ltd [2023] NSWCA 109
Case
[2023] NSWCA 109
Decision Date
CaseChat Overview and Summary
The applicants, Mr. Cappello and others, sought judicial review of a decision made by the District Court of New South Wales. This decision followed an appeal from a costs assessor concerning the assessment of costs. The applicants contended that their challenge to the costs assessor's findings had been wrongly described and that the District Court had made errors of law on the face of the record, including reliance on certain cases in error and a failure to consider their arguments and alleged implications under the *Legal Profession Uniform Law 2014* (NSW).
The primary legal issues before the Court of Appeal were whether the District Court had erred in law by mischaracterising the applicants' challenge, whether it had wrongly relied on certain case law, and whether it had failed to adequately consider the applicants' submissions, particularly those relating to the *Legal Profession Uniform Law 2014* (NSW). The applicants also argued that the District Court had improperly relied on evidence from the bar table.
The Court of Appeal found no errors of law on the face of the record. It concluded that the District Court's characterisation of the applicants' challenge was not erroneous and that the reliance on case law was appropriate. Furthermore, the court determined that the District Court had considered the relevant arguments and the implications of the *Legal Profession Uniform Law 2014* (NSW), and that the use of bar table evidence was permissible in the circumstances. Consequently, the Amended Summons was dismissed. The applicants were ordered to pay the respondents' costs of the application on an indemnity basis.
Orders
Orders of the court
(1) The Amended Summons is dismissed.
(2) The applicants are to pay the respondents’ costs of the application to be assessed on an indemnity basis