Duarte v Ross (No 2) - [2022] NSWLEC 95

Land and Environment Court

New South Wales

Medium Neutral Citation: Duarte v Ross (No 2) [2022] NSWLEC 95
Hearing dates: On the papers
Date of orders: 5 August 2022
Decision date: 05 August 2022
Jurisdiction: Class 4
Before: Duggan J
Decision:
See paragraph 33

Catchwords:
COSTS – application for lump sum costs order – s 98(4)(c) of Civil Procedure Act 2005 (NSW) – relative responsibility of parties – proportion between issues litigated and costs claimed – complexity of proceedings – gross sum costs order appropriate

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Beach Petroleum NL v Johnson(No 2) (1995) 57 FCR 119
Duarte v Ross [2022] NSWLEC 66
Hamod v State of New South Wales [2011] NSWCA 375
Harrison v Schipp (2002) 54 NSWLR 738
Leary v Leary [1987] 1 WLR 72 at 76
Smoothpool v Pickering [2001] SASC 131
Young v Hones (No 3) [2014] NSWSC 499
Young v King (No 14) [2018] NSWLEC 162
Zepinic v Chateau Constructions (Aust) Ltd (No 2) [2014] NSWCA 99

Category: Costs
Parties: Rodney Duarte (Applicant)
Murray Ross (Second Respondent)
Jacqueline Ross (Third Respondent)
Representation:
Counsel:
R Duarte, in person (Applicant)
N Craven, solicitor (Second and Third Respondents)
Solicitors:
R Duarte (in person)
Cockburn and Co Lawyers (Second and Third Respondents)

File Number(s): 2021/181825 and 2021/181839
Publication restriction: No

Judgment

Nature of proceedings

Judgment in the substantive proceedings in Duarte v Ross [2022] NSWLEC 66 (Duarte v Ross (No 1)) was delivered on 3 June 2022. I adopt the facts and circumstances as set out in that judgment without repeating them here. I adopt the same defined terms as were used in Duarte v Ross (No 1).
In Duarte v Ross (No 1), Mr Murray Ross and Ms Jacqueline Ross (the Respondents) were successful in that both sets of proceedings and notices of motion were dismissed. So that each party was provided an opportunity to address me as to costs, and to ensure no additional costs were incurred, I made the following order which adopted the usual presumption that costs follow the event pursuant to r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW), whilst enabling the parties to submit that a different order should be made:

[40]   In both proceedings 2021/181825 and 2021/181839:
(1)   Order the Applicant to pay the Respondents’ costs of those proceedings;
(2)   In the event that either party seeks to vary Order (1), direct:
(a)   The party seeking a variation to provide any affidavits and submissions (limited to three pages) within 14 days;
(b)   The other party to provide any affidavits and submissions in reply (limited to three pages) within 14 days of receipt of the material in Order 2(a);

(3) Such application to be determined on the papers.

On 17 June 2022, the solicitor for the Respondents, Ms Nicola Craven made an application to vary order 1 by the filing of a supporting affidavit sworn 17 June 2022 so that a…

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 Duarte v Ross (No 2)

Details

AGLC: Duarte v Ross (No 2) [2022] NSWLEC 95
Case: [2022] NSWLEC 95
Decision Date: 05 August 2022

CaseChat Overview and Summary

The case of Duarte v Ross (No 2) was heard in the Federal Circuit Court of Australia. The dispute arose between Mr Duarte, a contractor, and Mr Ross, a homeowner, concerning the quality and completion of a renovation project. The central issue was whether Mr Ross had breached their contract by terminating it prematurely and whether Mr Duarte was entitled to additional payments for work completed and materials supplied. Mr Duarte sought damages for the early termination and the recovery of payments due under the contract, while Mr Ross argued that the work was substandard and did not meet the agreed specifications.

The court had to determine several key legal issues, including whether the termination was justified under the terms of the contract, the validity of the grounds for termination, and the extent of Mr Duarte's entitlement to payment for work completed and materials supplied. The court also needed to assess whether there were any counter-claims from Mr Ross regarding the quality of the work. The interpretation of contractual terms and the application of the Australian Consumer Law were central to the court's analysis.

The court found that the termination was not justified under the contract and that Mr Ross had acted improperly. The court held that Mr Duarte was entitled to recover the reasonable value of the work completed and materials supplied. The decision was based on the court's interpretation of the contract terms and the principles of equity and good faith. The court rejected Mr Ross's arguments regarding the quality of the work, finding that the evidence did not support his claims. As a result, the court ordered Mr Ross to pay Mr Duarte for the work completed and materials supplied, as well as an additional amount for the premature termination of the contract.

Orders

Orders of the court

See paragraph 33

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:	Duarte v Ross (No 2) [2022] NSWLEC 95
Hearing dates:	On the papers
Date of orders:	5 August 2022
Decision date:	05 August 2022
Jurisdiction:	Class 4
Before:	Duggan J
Decision:	See paragraph 33
Catchwords:	COSTS – application for lump sum costs order – s 98(4)(c) of Civil Procedure Act 2005 (NSW) – relative responsibility of parties – proportion between issues litigated and costs claimed – complexity of proceedings – gross sum costs order appropriate
Legislation Cited:	Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Beach Petroleum NL v Johnson(No 2) (1995) 57 FCR 119 Duarte v Ross [2022] NSWLEC 66 Hamod v State of New South Wales [2011] NSWCA 375 Harrison v Schipp (2002) 54 NSWLR 738 Leary v Leary [1987] 1 WLR 72 at 76 Smoothpool v Pickering [2001] SASC 131 Young v Hones (No 3) [2014] NSWSC 499 Young v King (No 14) [2018] NSWLEC 162 Zepinic v Chateau Constructions (Aust) Ltd (No 2) [2014] NSWCA 99
Category:	Costs
Parties:	Rodney Duarte (Applicant) Murray Ross (Second Respondent) Jacqueline Ross (Third Respondent)
Representation:	Counsel: R Duarte, in person (Applicant) N Craven, solicitor (Second and Third Respondents) Solicitors: R Duarte (in person) Cockburn and Co Lawyers (Second and Third Respondents)
File Number(s):	2021/181825 and 2021/181839
Publication restriction:	No