On the papers (last submissions received 14 July 2014)
Decision date:
24 July 2014
Before:
Bathurst CJ; Ward JA; Gleeson JA
Decision:
(1) The respondent repay to the appellants the sum of $74,515.77.
(2) The appellants pay 90% of the respondent's costs of the appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:
PRACTICE AND PROCEDURE - Costs - Costs of appeal - General rule - Costs follow the event - Departing from the general rule - Where there has been a mixed outcome in the proceedings - Global view of the outcome of proceedings should be taken PRACTICE AND PROCEDURE - Costs - Costs in the Court below - General rule - Costs follow the event PRACTICE AND PROCEDURE - Costs -Interest under s101(4) Civil Procedure Act -Entitlement
David Galafassi (First appellant) Toni Galafassi (Second appellant) Susan Kelly (Respondent)
Representation:
Counsel: J Stoljar SC with J C Hewitt (Appellants) B A Coles QC with C G Carroll (Respondent) Solicitors: YBR Solicitor (Appellants) Osborne Lawyers (Respondent)
THE COURT: The Court delivered judgment in this appeal on 13 June 2014: Galafassi v Kelly [2014] NSWCA 190 (the principal reasons). The judgment of the primary judge in favour of the respondent for $814,907 was set aside and judgment was given in favour of the respondent for $602,500.82. The orders of the primary judge that the appellants pay the respondent's costs and that the appellants authorise the agents to account to the respondent for the deposit (of $317,500) were left unaffected.
These reasons deal with two remaining issues: repayment of amounts overpaid by the appellants to the respondent and the question of costs.
Repayment of amounts overpaid
It is common ground that the appellants have paid $700,000 to the respondent in respect of the judgment below, by instalments of $100,000 on the last day of each month from August 2013 to February 2014.
On the appellants' calculations the amount overpaid to the respondent is $72,065.60 as at 28 February 2014. The appellants claim interest at 8.5% per annum from 1 March 2014 to 27 June 2014 of $1,997.11, giving a total of $74,062.71. The appellants say that interest accrues from 27 June 2014 at the rate of $16.78…
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
AGLC
Galafassi v Kelly (No 2) [2014] NSWCA 239
Case
[2014] NSWCA 239
Decision Date
CaseChat Overview and Summary
In *Galafassi v Kelly (No 2)*, the New South Wales Court of Appeal considered an application by the appellants to set aside an earlier judgment and order of the Court. The dispute concerned the costs of an appeal where the outcome had been mixed, with the appellants succeeding in recovering a sum of money from the respondent, but being ordered to pay a significant portion of the respondent's costs of the appeal.
The primary legal issues before the Court of Appeal were whether the Court had the power to set aside its own earlier orders and, if so, whether it should exercise that power. Relatedly, the Court had to determine the appropriate orders for the costs of the appeal, particularly in light of the mixed success of the parties. The Court also considered the entitlement to interest under s 101(4) of the *Civil Procedure Act 2005* (NSW).
The Court of Appeal held that it possessed the inherent jurisdiction to set aside its own orders in exceptional circumstances, but that such power should be exercised with caution. In this instance, the Court found no basis to set aside the earlier orders. Regarding costs, the Court applied the general rule that costs follow the event, but took a global view of the proceedings to determine the appropriate apportionment. The Court reasoned that despite the appellants recovering a sum, the respondent had achieved substantial success in resisting the entirety of the appellants' claim and in securing a significant costs order in their favour. Consequently, the Court ordered that the respondent repay the sum of $74,515.77 to the appellants, but that the appellants pay 90% of the respondent's costs of the appeal.
Orders
Orders of the court
(1) The respondent repay to the appellants the sum of $74,515.77.
(2) The appellants pay 90% of the respondent's costs of the appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]