Fong bhnf Fong v Weller - [2024] NSWCA 46

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Fong BHNF Fong v Weller [2024] NSWCA 46
Hearing dates: 23 February 2024
Date of orders: 08 March 2024
Decision date: 08 March 2024
Before: Gleeson JA at [1];
Mitchelmore JA at [2];
Kirk JA at [3]
Decision:
(1) Summons dismissed.
(2) No order as to costs.

Catchwords:
COSTS — Assessment procedure — Competing costs agreements — Second costs agreement with tutor — Tutor’s right of indemnity from incapacitated person
APPEALS — Right of appeal — Relationship with judicial review — Whether right of appeal is reason to deny judicial review
JUDGMENTS AND ORDERS — Judicial review application of decision made under UCPR r 36.15 — Setting aside judgment — Court of Appeal — Issues not raised below — Absence of proper evidence — Importance of written submissions in identifying issues — Costs consequences where issues not identified by respondent
JUDICIAL REVIEW — Presence of error — Error not identified by parties — Exercise of discretion — Error goes only to whether applicant liable directly or indirectly — Time for disputation to end

Legislation Cited:
District Court Act 1973 (NSW), s 27(1)
Legal Profession Act 2004 (NSW), ss 302A, 350, 368, 379, 384 385
Legal Profession Uniform Law 2014 (NSW), Sch 4, cl 18
Legal Profession Uniform Law Application Act 2014, Pt 7, ss 70, 87, 89
Legal Profession Uniform Law Application Regulation 2015 (NSW), reg 59
Uniform Civil Procedure Rules 2005 (NSW) r 36.15

Cases Cited:
Ahern v Aon Risk Services Australia Ltd [2021] NSWCA 166
Amirbeaggi v EB [2023] NSWCA 108
Bingham v Bevan [2023] NSWCA 86; (2023) 111 NSWLR 287
Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501
Calandra v Murden [2015] NSWCA 231
D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088
Fisher v Nonconformist Pty Ltd [2024] NSWCA 32
Haritos v Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315
Lake Macquarie City Council v McKellar [2002] NSWCA 90
Murray v Kirkpatrick (1940) 57 WN (NSW) 162
Smith v NRMA Insurance Ltd [2016] NSWCA 250; (2016) 77 MVR 480
Spencer v Coshott [2021] NSWCA 235; (2021) 106 NSWLR 84
Spina v Permanent Custodians Ltd [2009] NSWCA 206
Steeden v Walden [1910] 2 Ch 393
Weinel v Judge Parsons (1994) 62 SASR 501
Weller v Fong BHNF Fong [2023] NSWDC 429
Yakmor v Hamdoush (No 2) [2009] NSWCA 284; (2009) 76 NSWLR 148

Texts Cited:
Justice Susan Kiefel, “On being a judge”, Public Lecture (15 January 2013) The Chinese University of Hong Kong

Category: Principal judgment
Parties: Rosie Hong Jia Fong BHNF Calvin Yao Ping Fong (Applicant)
Herbert Weller (First Respondent)
District Court of New South Wales (Second Respondent)
Representation:
Counsel:
Marcel Sahade (Applicant)
Kevin Tang (First Respondent)
Solicitors:
Oliveri Lawyers (Applicant)
Herbert Weller Solicitor (First Respondent)
Crown Solicitor for New South Wales (Second Respondent)

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: [2024] NSWCA 46
Decision Date: 08 March 2024

CaseChat Overview and Summary

The Court of Appeal of New South Wales, comprising Gleeson, Mitchelmore and Kirk JJA, considered an appeal concerning costs agreements and the judicial review of a costs assessment. The dispute arose from competing costs agreements, specifically a second agreement entered into with a tutor for an incapacitated person, and the tutor's right of indemnity.

The primary legal issues before the Court were whether a right of appeal precluded judicial review, the circumstances under which a judgment made under UCPR r 36.15 could be set aside by the Court of Appeal, and the significance of written submissions in identifying issues for determination. The Court also considered the implications of an error in judicial review, particularly when that error only related to whether an applicant was liable directly or indirectly, and the importance of bringing finality to disputation.

The Court reasoned that the existence of a right of appeal does not necessarily preclude judicial review, but it is a factor to be considered. The Court affirmed that it has the power to review decisions made under UCPR r 36.15, including setting aside judgments, particularly where issues were not properly identified or argued in the court below, or where there was an absence of proper evidence. The Court emphasised the critical role of written submissions in clearly delineating the issues for the court's consideration. The Court found that an error going only to the direct or indirect liability of an applicant, without affecting the substantive dispute, was not a sufficient ground to set aside the judgment, especially when the applicant had not properly identified this error.

The Court of Appeal dismissed the summons and made no order as to costs.

Orders

Orders of the court

(1) Summons dismissed.

(2) No order as to costs.

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:	Fong BHNF Fong v Weller [2024] NSWCA 46
Hearing dates:	23 February 2024
Date of orders:	08 March 2024
Decision date:	08 March 2024
Before:	Gleeson JA at [1]; Mitchelmore JA at [2]; Kirk JA at [3]
Decision:	(1) Summons dismissed. (2) No order as to costs.
Catchwords:	COSTS — Assessment procedure — Competing costs agreements — Second costs agreement with tutor — Tutor’s right of indemnity from incapacitated person APPEALS — Right of appeal — Relationship with judicial review — Whether right of appeal is reason to deny judicial review JUDGMENTS AND ORDERS — Judicial review application of decision made under UCPR r 36.15 — Setting aside judgment — Court of Appeal — Issues not raised below — Absence of proper evidence — Importance of written submissions in identifying issues — Costs consequences where issues not identified by respondent JUDICIAL REVIEW — Presence of error — Error not identified by parties — Exercise of discretion — Error goes only to whether applicant liable directly or indirectly — Time for disputation to end
Legislation Cited:	District Court Act 1973 (NSW), s 27(1) Legal Profession Act 2004 (NSW), ss 302A, 350, 368, 379, 384 385 Legal Profession Uniform Law 2014 (NSW), Sch 4, cl 18 Legal Profession Uniform Law Application Act 2014, Pt 7, ss 70, 87, 89 Legal Profession Uniform Law Application Regulation 2015 (NSW), reg 59 Uniform Civil Procedure Rules 2005 (NSW) r 36.15
Cases Cited:	Ahern v Aon Risk Services Australia Ltd [2021] NSWCA 166 Amirbeaggi v EB [2023] NSWCA 108 Bingham v Bevan [2023] NSWCA 86; (2023) 111 NSWLR 287 Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501 Calandra v Murden [2015] NSWCA 231 D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 Fisher v Nonconformist Pty Ltd [2024] NSWCA 32 Haritos v Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315 Lake Macquarie City Council v McKellar [2002] NSWCA 90 Murray v Kirkpatrick (1940) 57 WN (NSW) 162 Smith v NRMA Insurance Ltd [2016] NSWCA 250; (2016) 77 MVR 480 Spencer v Coshott [2021] NSWCA 235; (2021) 106 NSWLR 84 Spina v Permanent Custodians Ltd [2009] NSWCA 206 Steeden v Walden [1910] 2 Ch 393 Weinel v Judge Parsons (1994) 62 SASR 501 Weller v Fong BHNF Fong [2023] NSWDC 429 Yakmor v Hamdoush (No 2) [2009] NSWCA 284; (2009) 76 NSWLR 148
Texts Cited:	Justice Susan Kiefel, “On being a judge”, Public Lecture (15 January 2013) The Chinese University of Hong Kong
Category:	Principal judgment
Parties:	Rosie Hong Jia Fong BHNF Calvin Yao Ping Fong (Applicant) Herbert Weller (First Respondent) District Court of New South Wales (Second Respondent)
Representation:	Counsel: Marcel Sahade (Applicant) Kevin Tang (First Respondent) Solicitors: Oliveri Lawyers (Applicant) Herbert Weller Solicitor (First Respondent) Crown Solicitor for New South Wales (Second Respondent)