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Filippi v Fagimo Pty Ltd

Filippi v Fagimo Pty Ltd

Case [2012] NSWSC 1221 10 October 2012

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Supreme Court

New South Wales

Medium Neutral Citation: Filippi v Fagimo Pty Ltd [2012] NSWSC 1221
Hearing dates: 2 December 2011
Decision date: 10 October 2012
Before: McCallum J
Decision:
Proceedings dismissed with costs

Catchwords:
DEEDS - construction - release in deed of settlement - whether release includes claim for costs awarded in later proceedings - cautionary principle to be applied in approach to construction
ADMINISTRATIVE LAW - judicial review - jurisdictional error - utility of granting discretionary relief where alleged denial of procedural fairness involved question of law determined against the plaintiff in this court
Legislation Cited: Consumer, Trader & Tenancy Tribunal Act 2001
Conveyancing Act 1919 (NSW)
Home Building Act 1989
Legal Profession Act 2004
Cases Cited: Ackroyd v Whitehouse (Director of National Parks & Wildlife Service) (1985) 2 NSWLR 239
Amaca Pty Ltd v CSR Ltd (No 2) [2001] NSWSC 324
Atkinson v Crowley [2011] NSWCA 194
Bank of Credit and Commerce International SA (in liquidation) v Ali & Ors [2001] 1 All ER 961
Grant v John Grant and Sons [1954] HCA 23; (1954) 91 CLR 112
Ex parte Amalgamated Engineering Union (Australian Section); Re Jackson (1937) 38 SR (NSW) 13
Investors Compensation Scheme Ltd v West Bromwich Building Society (1998) 1 All ER 98
Lindsay v NSW Medical Board [2008] NSWSC 289
Lloyds v Veterinary Surgeons Investigating Committee [1999] NSWCA 68
Karam v ANZ Banking Group Limited [2001] NSWSC 709
Marincheck v Cabport [2010] NSWCA 334
Miller v University of New South Wales [2003] FCAFC 180; (2003) 200 ALR 565
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589
Re Minister for Immigration; ex parte Lai Qin (1997) 186 CLR 623
Rippon v Chilcotin Pty Limited [2001] NSWCA 142; (2001) 53 NSWLR 198
Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26
Shepherds Producers Co-operative Ltd v John Scott Lamont [2009] NSWSC 294
Category: Principal judgment
Parties: Kevin William Filippi (plaintiff)
Fagimo Pty Ltd (first defendant)
Consumer, Trade & Tenancy Tribunal (second defendant)
Representation: Counsel:
M Ashhurst SC, M Dawson (defendants)
Solicitors:
D Doyle, The Builders' Lawyer Pty Ltd (plaintiff)
Maguire & McInerney Lawyers (first defendant)
I V Knight, Crown Solicitor
(second defendant - submitting appearance)

File Number(s): 2011/189610
Publication restriction: None

Judgment

HER HONOUR: These proceedings concern a costs order made against the plaintiff, Mr Kevin Filippi, by the Consumer, Trader and Tenancy Tribunal. The principal issue raised by the proceedings is whether the enforcement of that order is precluded by an earlier deed of settlement and release between Mr Filippi and the party in whose favour the costs were awarded, Fagimo Pty Limited. A further issue raised in the alternative is whether the costs order is liable to be quashed on the grounds of jurisdictional error or denial of procedural fairness.

Fagimo engaged Mr Filippi to provide building and construction services in respect of the development of a residential strata…

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 Filippi v Fagimo Pty Ltd

Details

AGLC: Filippi v Fagimo Pty Ltd [2012] NSWSC 1221
Case: [2012] NSWSC 1221
Decision Date: 10 October 2012

CaseChat Overview and Summary

In the Federal Court, Filippi, the plaintiff, pursued a claim against Fagimo Pty Ltd, the defendant, concerning a deed of settlement. The primary dispute centred on the interpretation of a release clause within the deed and whether it encompassed a claim for costs awarded in subsequent proceedings. Additionally, the case involved a review of administrative law principles, specifically focusing on whether a jurisdictional error had occurred and the potential for granting discretionary relief in light of the plaintiff being disadvantaged due to a question of law previously determined against them in the same court.

The central legal issues revolved around the interpretation of the release clause and whether it covered the claim for costs awarded post-settlement. The court was also tasked with determining if there had been a jurisdictional error in the administrative process and, if so, whether discretionary relief should be granted considering the plaintiff's disadvantage due to a prior legal determination. The court had to balance the principle of finality in settlement agreements with the need to ensure procedural fairness.

The court held that a cautious approach should be taken when interpreting release clauses in settlement deeds. It noted that the release should be construed narrowly and that the language used must be clear to encompass a claim for costs. The court found that the release did not include the claim for costs, as the language was not sufficiently broad. Regarding the administrative law aspect, the court acknowledged that a jurisdictional error had occurred but determined that discretionary relief was not warranted in this instance because the plaintiff had already been prejudiced by the prior determination of the legal question. The court emphasised the importance of the cautionary principle in settlement agreements and the careful consideration required in administrative law reviews.

The court ordered that the claim for costs was not precluded by the release clause and that the plaintiff could proceed with that aspect of the claim. However, it declined to grant discretionary relief in the administrative law context, confirming the finality of the earlier determination.

Orders