Cappello v Homebuilding Pty Ltd (No.2)

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District Court


New South Wales

Medium Neutral Citation: Cappello v Homebuilding Pty Ltd (No.2) [2023] NSWDC 54
Hearing dates: 28 February 2023; written submissions 7 March, 15 March 2023
Date of orders: 17 March 2023
Decision date: 17 March 2023
Jurisdiction:Civil
Before: Gibson DCJ
Decision:

(1) Pursuant to s 98 of the Civil Procedure Act 2005 (NSW), the plaintiffs are to pay the defendant’s costs by way of a gross sum costs order, namely $10,549.40 for solicitors’ costs plus $15,900.00 for counsel’s fees, making a total of $26,449.40.

(2)   These orders stayed until 5 pm 28 March 2023.

Catchwords:

COSTS – application for gross sum costs order following dismissal of a Summons appealing from costs determinations made by the Review Panel – no issue of principle

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 56, 98

Cases Cited:

Bahamad v Wong [2020] NSWSC 991

Bailey v O’Dea [2021] NSWSC 1420

Bobb v Wombat Securities Pty Ltd (No 2) [2013] NSWSC 863

Enterprise Finance Solutions Pty Ltd v Ciszek [2014] NSWDC 314

Ferella v Stomo [2017] NSWCA 268

Ferella v Stomo [2017] NSWDC 34

Ferella v Stomo (No 2) [2017] NSWDC 61

Harrison v Schipp (2002) 54 NSWLR 738

In the matter of Tresdar Pty Ltd (No 4) [2019] NSWSC 1456

Lemoto v Able Technical Pty Ltd & 2 Ors (2005) 63 NSWLR 300

LFDB v SM (No 4) [2017] FCA 753

Paul Springthorpe trading as Atanaskovic Hartnell; v Australian Style Group Pty Ltd [2021] NSWDC 471

Penson v Titan National Pty Limited (No 3) [2015] NSWCA 121

Pirovic v Barbieri [2021] NSWSC 1460

Royal v El Ali (No 3) [2016] FCA 1573

Sayed v National Australia Bank Limited [2021] NSWCA 28

Simone Starr-Diamond v Talus Diamond (No. 4) [2013] NSWSC 811

Spencer v Coshott [2021] NSWCA 235

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

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

Texts Cited:

Nil

Category:Costs
Parties:

Rosario Cappello (plaintiff)
Maria Capello (plaintiff)

Homebuilding Pty Ltd (defendant)
Representation:

Counsel:
Mr D P O’Connor (defendant)

Solicitors:
Plaintiffs: self-represented
Defendant: Adams & Partners
File Number(s): 2022/00106476
Publication restriction: Nil

Judgment

The costs application before the court

  1. The plaintiffs, by Summons filed on 13 April 2022, appealed two costs determinations of the Costs Review Panel. On 9 December 2022, I dismissed the Summons and reserved the issue of costs. The defendant now brings an application for the costs of the Summons to be paid on an indemnity basis and for a gross sum costs order pursuant to s 98 of the Civil Procedure Act 2005 (NSW) (“the Civil Procedure Act”).

  2. The costs the subject of the Summons were incurred as follows. The defendant in these proceedings, Homebuilding Pty Ltd (“the defendant”, then named Hammond & Simonds NSW Pty Ltd) brought proceedings in the Supreme Court of New South Wales in 2018, to which Mr and Mrs Cappello (“the plaintiffs”) brought a cross-claim. The defendant was awarded $81,113.54 against the first (but…

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Details
Case
[2023] NSWDC 54
Decision Date

CaseChat Overview and Summary

In the proceedings of Cappello v Homebuilding Pty Ltd (No.2), the plaintiff, Cappello, sought to appeal a decision made by the Review Panel regarding costs. The defendant, Homebuilding Pty Ltd, responded by dismissing the appeal and subsequently applying for a costs order. This matter was heard in the Supreme Court of New South Wales. The court was tasked with deciding whether the plaintiff's application for an appeal from the costs determinations was meritorious and whether a gross sum costs order should be granted to the defendant.

The court considered the nature of the appeal and the circumstances surrounding the costs determinations. The primary issue was whether the plaintiff's application for costs was justified, and if not, whether a gross sum costs order should be granted to the defendant. The court noted that the plaintiff's appeal was dismissed due to the lack of any issue of principle. As such, the court found that the defendant was entitled to be compensated for the costs incurred in defending the appeal.

The court ruled that the plaintiff's appeal was without merit, and a gross sum costs order should be granted to the defendant. The court assessed the reasonable costs incurred by the defendant, which included $10,549.40 for solicitors' costs and $15,900.00 for counsel's fees, resulting in a total of $26,449.40. The court ordered that these costs be paid by the plaintiff to the defendant. The orders were to be stayed until 5 pm on 28 March 2023, allowing for any potential review or further applications.

Orders

Orders of the court

(1) Pursuant to s 98 of the Civil Procedure Act 2005 (NSW), the plaintiffs are to pay the defendant’s costs by way of a gross sum costs order, namely $10,549.40 for solicitors’ costs plus $15,900.00 for counsel’s fees, making a total of $26,449.40.

(2) These orders stayed until 5 pm 28 March 2023.

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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