Frumar v The Owners of Strata Plan 36957

The plaintiff, Frumar, appealed to the Court of Appeal of New South Wales against a judgment of the District Court of New South Wales. The dispute concerned the effect of a costs certificate issued under the *Legal Practitioners Act 1898* (NSW) which had been set aside on appeal, and the subsequent judgment entered in reliance upon it.

The primary legal issue before the Court of Appeal was the consequence of setting aside a costs certificate, which had been filed and taken to be a judgment of the court, on the judgment that had been entered. This also raised the question of whether the respondent was entitled to restitution of moneys paid under that judgment.

The Court of Appeal reasoned that once the costs certificate was set aside, the basis for the District Court's judgment was removed. Consequently, the judgment itself was vitiated. The court applied the principle that where a judgment is based on a document that is subsequently invalidated, the judgment cannot stand. Therefore, the court found that the respondent was entitled to restitution of the moneys paid under the original judgment, pending a fresh assessment of costs.

The Court of Appeal allowed the appeal, set aside the District Court's judgment of 18 December 2009, and substituted a judgment for the plaintiff in the sum of $101,815.51, including pre-judgment interest, with effect from 26 July 2010, together with costs. The respondent was also granted a certificate under the *Suitors Fund Act* if qualified.