Cappello v Homebuilding Pty Ltd (formerly known as Hammond & Simonds NSW Pty Ltd) (No 2)

The matter before the court involved a review of the taxation of costs in a proceeding between Cappello and Homebuilding Pty Ltd, formerly known as Hammond & Simonds NSW Pty Ltd. The Cappellos, the applicants, sought to challenge the certificate of taxation issued by the Registrar. They argued that certain items were excessive and not in accordance with the rules, while Homebuilding contended that the costs were properly claimed and that the Cappellos had failed to demonstrate that the costs were unreasonable. The applicants also raised an issue regarding the breach of the indemnity principle by Homebuilding, which they argued should result in no costs being payable.

The court needed to determine whether the costs claimed by the Cappellos were excessive or not in accordance with the rules, and whether there was a breach of the indemnity principle by Homebuilding that would result in no costs being payable. The court also had to consider whether the Cappellos had demonstrated that certain items were not properly claimed, and whether Homebuilding had breached the indemnity principle by not providing adequate disclosure of costs.

The court found that while the Cappellos had not successfully challenged the majority of the costs, certain items were excessive and not in accordance with the rules. The court reduced the amount of the costs by the sum of the amounts in items 1 to 10 (inclusive) and 78 of the costs and 79 to 84 (inclusive) of the disbursements. The court also found that there was no breach of the indemnity principle by Homebuilding and that the Cappellos had not demonstrated that no costs should be payable. The court held that each party should bear their own costs of the review since the Cappellos were largely unsuccessful in their challenge to the taxation.

The court varied the certificate of taxation issued on 23 June 2023 by substituting $40,638.53 for $41,431.48. The entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.