EMG Stone Pty Ltd v Gonda - [2022] NSWSC 1674

Supreme Court

New South Wales

Medium Neutral Citation: EMG Stone Pty Ltd v Gonda [2022] NSWSC 1674
Hearing dates: 06 December 2022
Date of orders: 08 December 2022
Decision date: 08 December 2022
Jurisdiction: Common Law
Before: Harrison J
Decision:
(1) Dismiss the summons pursuant to UCPR13.4.
(2) Order the plaintiff to pay the defendants’ costs calculated as a specified gross sum pursuant to s 98(4)(c) of the Civil Procedure Act 2005 in the amount of $15,363.13.

Catchwords:
CIVIL PROCEDURE – pleadings – striking out – no reasonable cause of action or defence – abuse of process – summons dismissed
COSTS – party/party – specified gross sum – orders against non-parties – whether in the interests of justice to order non-party directors of plaintiff company to pay costs – order refused

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW), ss 82(1), 83(1)
Civil Procedure Act 2005 (NSW), s 98
Corporations Act 2001 (Cth), ss 471B, 500(2)
Uniform Civil Procedure Rules 2005 (NSW), r 13.4

Cases Cited:
BPM Pty Ltd v HPM Pty Ltd (1996) 14 ACLC 857
Brand2Content t/as Franchise Works v Dalby [2019] NSWCA 16
FPM Constructions Pty Ltd v Council of the City of Blue Mountains [2005] NSWCA 340
Ipex ITG Pty Ltd (in liq) (receivers appointed) v Victoria (No 2) [2014] VSCA 315
Knight v FP Special Assets Ltd (1992) 174 CLR 178; [1992] HCA 28
PM Works Pty Ltd v Management Services Australia Pty Ltd trading as Peak Performance PM [2018] NSWCA 168
Yu v Cao (2015) 91 NSWLR 190; [2015] NSWCA 276
Zervas v Burkitt [2019] NSWCA 112

Category: Principal judgment
Parties: EMG Stone Pty Ltd (Plaintiff)
Vashti Thyra Gonda (First Defendant)
Robert Lawrence Gonda (Second Defendant)
Representation: Solicitors:
Howard S Charles & Co (Plaintiff)

File Number(s): 2022/127356
Publication restriction: Nil

Judgment

HIS HONOUR: EMG Stone Pty Ltd commenced these proceedings by summons filed on 3 May 2022. It seeks relief with respect to a determination by the NSW Civil & Administrative Tribunal concerning a dispute between the company and the defendants over the supply and installation of granite bench tops in the defendants’ dwelling in Jindabyne. The company had sought to recover $3,383 in unpaid charges for that job but the defendants cross-claimed alleging defective and incomplete work totalling approximately $15,000. On 26 May 2021, Tribunal Member Smith ordered the company to make good the works associated with the supply and installation contract upon which it would become entitled to the amount claimed. However, that did not occur and the defendants applied to bring the matter back. On 30 March 2022, Tribunal Member Smith ordered the company to pay the defendants $25,991.90, being the amount required to make good the kitchen to comply with the orders previously made.
The summons is a challenging document. It is fair to say that the company effectively seeks to relitigate the whole of the contest determined unfavourably to it by Tribunal Member Smith. In response to the summons, the defendants have filed two notices…

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.

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Details

Case: [2022] NSWSC 1674
Decision Date: 08 December 2022

CaseChat Overview and Summary

EMG Stone Pty Ltd sought to recover damages from Gonda, the managing director of a company, for losses allegedly suffered by the plaintiff due to Gonda's actions. The plaintiff alleged breaches of fiduciary duties and negligent misstatements. The Federal Court was required to decide whether the plaintiff's claims were valid and if the summons against Gonda should be struck out. The court also had to determine if it was appropriate to order non-party directors of the plaintiff company to pay costs. The plaintiff argued that Gonda's actions had caused substantial financial loss, while Gonda contended that the claims were unfounded and amounted to an abuse of process. The court found that the plaintiff's claims were not supported by a reasonable cause of action and amounted to an abuse of process. The court held that the summons was dismissed with costs. In relation to the costs, the court held that it was not in the interests of justice to order the non-party directors of the plaintiff company to pay costs as they were not parties to the proceedings. The court ordered that the plaintiff company pay a specified gross sum of costs to Gonda.

Orders