Cappello v Lyons - [2022] NSWDC 258

District Court

New South Wales

Medium Neutral Citation: Cappello v Lyons [2022] NSWDC 258
Hearing dates: 11 July 2022
Date of orders: 12 July 2022
Decision date: 12 July 2022
Jurisdiction: Civil
Before: Abadee DCJ (as List Judge)
Decision:
See paragraph 63

Catchwords:
PRACTICE AND PROCEDURE – civil – professional negligence suit (solicitor) – alleged negligence in pleading of owners’ (plaintiffs’) defence to builder’s claim based on unpaid invoice for progress payment in a proceeding in the Supreme Court of New South Wales – plaintiffs’ application to amend – application to rely upon supplementary evidence from plaintiff – hearing scheduled in just over 5 weeks – consideration of prejudice to both parties in permitting amendments and supplementary evidence

Legislation Cited:
Civil Liability Act 2002 (NSW) ss 5B, 5O
Civil Procedure Act 1995 (NSW) ss 58, 64
Home Building Act 1989 (NSW)

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

Texts Cited:
Nil

Category: Principal judgment
Parties: R Cappello (plaintiff)
J Lyons (defendant)
Representation:
Counsel:
Mr Raine (as agent) for the plaintiff
Mr Ng for the defendant
Solicitors:
Hall Partners for the plaintiff
Yeldham Price O’Brien Lusk for the defendant

File Number(s): 2021/00115214
Publication restriction: Nil

REASONS FOR Judgment

Background

The provenance of the dispute

This proceeding features a professional negligence suit. It commenced on 23 April 2021.
The suit arises from a building dispute between the plaintiffs, Mr and Mrs Cappello (the ‘Cappellos’), as owners, and builders who performed renovation works at their home in Haberfield under a construction contract entered into on 1 September 2017. That contract was terminated on 20 November 2018. That dispute was the subject of proceedings in the Equity Division of the Supreme Court of New South Wales (in its Technology and Construction List) commenced in January 2019. Mr and Mrs Cappello claimed damages for defective building work, relying upon warranties under the Home Building Act 1989 (NSW). In August 2019, the builders cross-claimed for a sum representing an unpaid final progress claim (and also claimed on a quantum meruit).
At the dates that the Cappellos filed originating process and a defence to the builders’ cross-claim, respectively, they were represented by the defendant’s firm in this proceeding. But by the time that the Supreme Court proceeding was heard before Ball J in July 2020, the Cappellos represented themselves. Ball J delivered judgment for the builders for a monetary sum in August 2020 and the Cappellos’ claim was dismissed. A costs order was made against the Cappellos. An appeal against that decision was allowed, but only to a limited extent, on 14 April 2021. The appeal judgment was published on Caselaw as Cappello v Hammond & Simonds NSW Pty Ltd [2021] NSWCA 57. Although the appeal succeeded in part, the Cappellos were ordered 75% of the builder’s costs of the appeal.
In the leading judgment of Leeming JA (with whom Macfarlan JA and McCallum JA, as her Honour then was, agreed) it was noted that one basis for the Cappellos’…

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 Lyons

Details

AGLC: Cappello v Lyons [2022] NSWDC 258
Case: [2022] NSWDC 258
Decision Date: 12 July 2022

CaseChat Overview and Summary

The case of Cappello v Lyons involved a legal dispute where the plaintiffs, Cappello, sought damages from Lyons, their former solicitor, for alleged negligence in the conduct of a defence in a proceeding related to an unpaid invoice for progress payment. The original case was heard in the Supreme Court of New South Wales, where the Cappellos had engaged Lyons to represent them in defending a claim by a builder. The Cappellos now sought to amend their pleadings to include additional evidence and to allow the plaintiff to testify, which was opposed by Lyons on the basis that it would cause significant prejudice.

The primary legal issue before the court was whether the Cappellos should be permitted to amend their pleadings to include supplementary evidence and to call the plaintiff as a witness. This involved a consideration of the balance of convenience and the potential prejudice to both parties if the amendments were allowed. The court had to weigh the prejudice to Lyons against the Cappellos' right to amend their pleadings and present additional evidence.

The court concluded that permitting the Cappellos to amend their pleadings and call the plaintiff as a witness would cause substantial prejudice to Lyons, outweighing the benefits to the Cappellos. The court noted that the amendments were sought at a late stage in the proceedings, just over five weeks before the hearing, and that Lyons had not had an opportunity to respond to the proposed evidence. The court also considered the potential for further delays and the impact on the efficiency of the legal process. Consequently, the court denied the Cappellos' application to amend their pleadings and to call the plaintiff as a witness.

In light of the findings, the court dismissed the Cappellos' application to amend their pleadings and to call the plaintiff as a witness. The court emphasised the importance of maintaining the integrity of the legal process and the need to prevent unnecessary delays and prejudice to the parties involved. The final orders of the court reflected this decision, ensuring that the proceedings would continue without the proposed amendments.

Orders

Orders of the court

See paragraph 63

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.

Medium Neutral Citation:	Cappello v Lyons [2022] NSWDC 258
Hearing dates:	11 July 2022
Date of orders:	12 July 2022
Decision date:	12 July 2022
Jurisdiction:	Civil
Before:	Abadee DCJ (as List Judge)
Decision:	See paragraph 63
Catchwords:	PRACTICE AND PROCEDURE – civil – professional negligence suit (solicitor) – alleged negligence in pleading of owners’ (plaintiffs’) defence to builder’s claim based on unpaid invoice for progress payment in a proceeding in the Supreme Court of New South Wales – plaintiffs’ application to amend – application to rely upon supplementary evidence from plaintiff – hearing scheduled in just over 5 weeks – consideration of prejudice to both parties in permitting amendments and supplementary evidence
Legislation Cited:	Civil Liability Act 2002 (NSW) ss 5B, 5O Civil Procedure Act 1995 (NSW) ss 58, 64 Home Building Act 1989 (NSW)
Cases Cited:	Cappello v Hammond & Simonds NSW Pty Ltd [2021] NSWCA 57
Texts Cited:	Nil
Category:	Principal judgment
Parties:	R Cappello (plaintiff) J Lyons (defendant)
Representation:	Counsel: Mr Raine (as agent) for the plaintiff Mr Ng for the defendant Solicitors: Hall Partners for the plaintiff Yeldham Price O’Brien Lusk for the defendant
File Number(s):	2021/00115214
Publication restriction:	Nil