New South Wales
Court of Appeal
CITATION: CHAINA v ALVARO HOMES PTY LTD [2008] NSWCA 353 HEARING DATE(S): 24 and 25 September 2008
JUDGMENT DATE:
18 December 2008JUDGMENT OF: Giles JA at 1; Basten JA at 15; Young CJ in Eq at 118 DECISION: (1) Grant the applicants on the summons leave to appeal with respect to the judgments and orders made in the District Court on 8 February, 12 February and 15 February 2008.
(2) Order the applicants to file the amended draft notice of appeal of 19 September 2008 within seven days.
(3) Dismiss the appeal.
(4) Order the appellants to pay the respondents’ costs of the proceedings in this Court.
CATCHWORDS: COSTS – indemnity basis – standing to challenge costs order – amount of payment due under contract in excess of offer – whether claims unreasonable and unsupported by evidence – whether costs proportionate to importance and complexity of case – Civil Procedure Act 2005 (NSW), s 60 - EVIDENCE – conference of experts – involvement of party in conference – supply to experts of information not agreed in advance - PROCEDURAL FAIRNESS – civil proceedings – need to demonstrate loss of opportunity – onus on complainant to establish facts - PROCEDURAL FAIRNESS – civil proceedings – trial judge’s reliance on demeanour of party in courtroom – no notice to parties – whether legal representatives in position to observe party’s behaviour – whether refusal to grant adjournment constituted procedural unfairness – whether alleged unfairness affected outcome – whether extent of impact can be assessed on appeal – comparison between failure to accord procedural fairness in administrative law, in civil proceedings and in criminal proceedings – degrees of unfairness LEGISLATION CITED: Civil Procedure Act 2005 (NSW), ss 22, 60
Legal Profession Act 2004 (NSW), Part 3.2, Div 10
Supreme Court Act 1970 (NSW), ss 75A, 78, 101
Uniform Civil Procedure Rules 2005 (NSW), r 51.53CATEGORY: Principal judgment CASES CITED: Angaston & District Hospital v Thamm (1987) 47 SASR 177
Balenzuela v De Gail [1959] HCA 1; 101 CLR 226
Baillieu Knight Frank (NSW) Pty Ltd v Ted Manny Real Estate Pty Ltd (1992) 30 NSWLR 359
Berkeley Challenge Pty Ltd v Potbury [1997] NSWCA 44
Cesan v Director of Public Prosecutions (Cth) [2007] NSWCCA 273; 174 A Crim R 385
Chen v Karandonis [2002] NSWCA 412
Colgate-Palmolive Company v Cussons Pty Ltd [1993] FCA 536; 46 FCR 225
Commonwealth of Australia v Gretton [2008] NSWCA 117
Craig v South Australia [1995] HCA 58; 184 CLR 163
Darkan v The Queen [2006] HCA 34; 80 ALJR 1250
Degmam Pty Ltd (In liq) v Wright (No. 2) [1983] 2 NSWLR 354
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd [1988] FCA 202; 81 ALR 397
Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; 209 CLR 478
Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304
Helicopter Sales (Australia) Pty Ltd v Rotor-Work…
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- Case
- [2008] NSWCA 353
- Decision Date
CaseChat Overview and Summary
The Court of Appeal was required to determine several legal issues, including the standing of the applicants to challenge the costs order, whether the amount due under the contract exceeded the offer made, and if the claims were unreasonable and unsupported by evidence. Further issues concerned whether the costs awarded were proportionate to the importance and complexity of the case, and whether the trial judge's reliance on the demeanour of a party in court, without prior notice, constituted a denial of procedural fairness. The court also considered the implications of a party's involvement in a conference of experts and the supply of information not previously agreed.
The Court of Appeal granted the applicants leave to appeal. The reasoning behind the decision, particularly concerning the procedural fairness issues and the assessment of the impact of any alleged unfairness on the outcome, was central to the granting of leave. The court's analysis encompassed the different standards of procedural fairness applicable in administrative, civil, and criminal proceedings.
The applicants were ordered to file an amended draft notice of appeal within seven days.
Orders
Orders of the court
(1) Grant the applicants on the summons leave to appeal with respect to the judgments and orders made in the District Court on 8 February, 12 February and 15 February 2008. (2) Order the applicants to file the amended draft notice of appeal of 19 September 2008 within seven days.
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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