Grygiel v Baine (No 2) - [2005] NSWCA 434

NEW SOUTH WALES COURT OF APPEAL

CITATION: Grygiel v Baine & Ors [No. 2] [2005] NSWCA 434

FILE NUMBER(S):
40673/04

HEARING DATE(S): 19 May 2005

JUDGMENT DATE: 09/12/2005

PARTIES:
Christopher Andrew Grygiel (Claimant)
Anthony J Baine & Janice Wiley (First Opponents)
Albion Design and Construction Pty Ltd (Second Opponent)
Carroll & O'Dea, Solicitors and Attorneys (Third Opponents)

JUDGMENT OF: Mason P Bryson JA Basten JA

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): SC 3088/03

LOWER COURT JUDICIAL OFFICER: Master Malpass

COUNSEL:
J Simpkins SC, V Zipser (Claimant)
E Olsson SC (First Opponents)
R Colquhous (Third Opponents)

SOLICITORS:
The Builders' Lawyer (Claimant)
Massey Bailey (First Opponents)
Carroll & O'Dea (Third Opponents)

CATCHWORDS:
Costs - whether orders in final judgment should be varied under the slip rule - whether court failed to 'invite' the parties to make a submission on costs - effect of failure by counsel to address on costs at the hearing

LEGISLATION CITED:
Consumer, Trader and Tenancy Tribunal Act 2001 (NSW)
Home Building Act 1989 (NSW)
Suitors' Fund Act 1951 (NSW)

DECISION:
(1) Motion by Mr Grygiel to vary the orders made by the Court on 29 June 2005 with respect to costs be dismissed with costs
(2) Grant certificates under the Suitor's Fund Act to Mr Baine and to Carroll & O’Dea in relation to -
(i) the proceedings in the Common Law Division no. 30088 of 2003; and
(ii) this appeal.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40673/04
SC 3088/03
MASON P
BRYSON JA
BASTEN JA
9 December 2005

CHRISTOPHER ANDREW GRYGIEL v ANTHONY J. BAINE & JANICE WILEY & ORS [NO. 2]

Judgment

MASON P: I agree with Basten JA.
BRYSON JA: I agree with Basten JA.
BASTEN JA: On 29 June 2005 the Court handed down judgment with respect to an application by the Claimant (the builder) for leave to appeal against a judgment and orders of the Master in the Common Law Division. The appeal to the Master was concerned with a number of interlocutory orders made by the Consumer, Trader and Tenancy Tribunal in dealing with a “building claim” under s 49A of the Home Building Act 1989 (NSW).
A majority of the Court was minded to grant leave to appeal and uphold the appeal with respect to a limited question only. That question was identified in the orders in the following terms:
“(3)set aside the decision of the Tribunal as to its jurisdiction in relation to the proposed claims against Mr Baine and the law firm with respect to the provision of legal advice in relation to the supply of building goods and services to the First Opponent [Mr Baine].”
Leave to appeal was granted for that purpose. The judgment of the Master “in that regard” was ordered to be set aside. Consequentially, the Court made the following orders in relation to costs:
“(5)order that Anthony James Baine, pay the Claimant one-half of his costs,
(i) of the appeal before the Master; and
(ii) of the proceedings in this Court.”
The application was otherwise dismissed.
On 3 August 2005, some five weeks after the delivery of judgment, the Claimant filed a notice of motion seeking variation of the costs order so that it would read:
“(5A)Order that Anthony James Baine and Janice Wiley pay the Claimant one-half of his costs,
(i)     of the appeal before the Master, and
(ii)    of the proceedings in this Court.
(5B)Order that Anthony James Baine and Janice Wiley pay the Claimant 40% of his costs of the motion before the Tribunal.
(5C)Order that Carroll & O’Dea pay the Claimant one-half of his costs
(i)     of the appeal before the Master; and
(ii)    of the proceedings in this Court.
(5D)Order that Carroll & O’Dea pay the Claimant 40% of his costs of the motion before the Tribunal.”
In addition, the Claimant sought orders that Mr Baine and Ms Wiley (the co-owners of the house on which the building work was undertaken) and Carroll & O’Dea (the law firm of which Mr Baine was a partner) pay one-half of the costs of the present motion.
The bases on which these orders were sought are first that the Court should “correct” its costs orders made on 29 June 2005 and, secondly, that it make “additional orders in relation to costs” pursuant to Part 52A, r 5 of the Supreme Court Rules. The former ground invoked the slip rule under the Supreme Court Rules (now repealed); the latter effectively invited the Court to reopen its earlier judgment.
In its judgment of 29 June 2005, Grygiel v Baine & Ors [2005] NSWCA 218 Bryson JA, who would have refused leave entirely, commented at [16]:
“The time and patience of the Court of Appeal have been abused by discussion of matters extraneous or peripheral to a proposed appeal from decision of a question with respect to a matter of law.”
His Honour continued, after reference to possible steps which might be taken in the Tribunal:
“The application was encrusted with barnacles in the Tribunal, and grew more with its decelerating progression.”
The present application gives weight to those comments. It also leads to the inference that the builder, possibly with the concurrence and encouragement of his solicitor, has long since lost sight of the original claim, with the result that questions of costs have taken centre stage. This may not be a novel occurrence, but it may focus the attention of any court or tribunal to avoid providing any encouragement for the continuance of such a course.
The order for costs made by the Tribunal, which appears to have been relevant to the question with respect to which leave was granted by this Court (though its relevance was not so limited) was given on 25 February 2004, after the commencement of proceedings in the Common Law Division. As a result, the statement of grounds in support of the summons was amended on 26 March 2004 to assert that:
“The plaintiff [Mr Grygiel] also appeals from part of the decision on costs of the motion made by the Tribunal on 25 February 2004.”
Grounds were added which, rather than identifying the part of the decision on costs sought to be challenged, appears to have identified the whole of the decision.
On 3 August 2005 a solicitor employed by the principal solicitor for the builder, Dr David Doyle, filed an affidavit. Annexure “A” to the affidavit was the decision of the Tribunal with respect to costs dated 25 February 2004. It was not suggested that that decision was in the material before this Court on the application for leave to appeal. Its tender, in the absence of any application to reopen the hearing of the appeal, must be rejected.
The affidavit also annexes a copy of the transcript of the hearing in this Court on 19 May 2005. The affidavit states (at par 17):
“Apparently, the Court, while receiving and hearing submissions on the substantive issues on the appeal, did not invite or hear submissions on costs.”
In the summons for leave to appeal to this Court, the Claimant sought an order in the following terms:
“6.An order that the costs orders consequential upon the dismissal of the summons by Master Malpass and of the Tribunal in respect of the motion for joinder and amendment be set aside.
7.An order that the opponents pay the costs of this appeal, of the Court below and of the proceedings before the Tribunal in respect of the motion for joinder and amendment.”
It may be inferred from the affidavit, quoted above, that the Claimant, through his senior counsel, did not address the Court on costs. That he did not address on material not before the Court is hardly surprising. Failure to address on costs is commonplace and, with two qualifications which will be addressed below, may properly be taken by the Court as an indication that no special or unusual orders are required. The usual order with respect to costs is that they should follow the event, the Court thus being left to judge the precise terms of an appropriate order in the circumstances which eventuate in the judgment.
The first and major qualification to this principle arises where an offer of compromise or settlement has been made which properly should not be disclosed to the Court prior to judgment. Although the substance of the offer should not be disclosed, there is usually no difficulty in indicating, at least in this Court, that some form of offer has been made and that, accordingly, questions of costs may need to be reserved so that relevant material can be put to the Court, depending on the outcome and in the event that the parties cannot agree on the appropriate result. Secondly, there are complex cases which involve interconnected issues and possibly multiple parties. Where different parties are ultimately partly successful only, submissions as to costs may need to follow the handing down of judgment. However, even in these cases, the Court should be entitled to act on the basis that resolution of the issue is not intended to be the subject of further submissions, unless a contrary position has been indicated at the hearing. The burden on the Court of applications to address further in relation to costs after judgment is significant. Inadvertence on the part of the legal representatives will generally not be a sufficient basis for permitting further submissions, even in writing, and certainly not a basis for a further hearing, as appears to have been proposed in the present case.
The expeditious despatch of the business of the Court depends to a significant extent on the Court being able to rely upon practitioners appearing before it to ensure that its attention is drawn to matters relevant to the determination of the proceedings. If any unexpressed inference is sought to be drawn from the statement that the Court did not “invite” submissions on a particular topic, that inference must be rejected.
If submissions had been made to the Court in a timely fashion seeking leave to challenge so much of the decision of the Master as refused to review the decision of the Tribunal with respect to costs, it is unlikely that such an application would have been granted. To the extent that leave was granted, with respect to a specific and confined issue, any order in relation to costs made by the Tribunal would have required an unravelling of the issues covered by the Tribunal’s order, in a manner which would not have been practicable or appropriate in this Court. Nor has it been demonstrated that the Tribunal would not be in a position to reconsider its own interlocutory order as to costs in the light of any decision made by this Court. However, because the matter was not raised in a timely fashion, it need not be further addressed. The application seeking orders (5B) and (5D) is rejected.
So far as the orders in this Court are concerned, they depend upon reopening the orders made on 29 June 2005. There is no room for the operation of the slip rule. Thus, proposed order (5A)(ii) seeks to vary the order made on 29 June only to add Ms Wiley as bearing joint responsibility for the costs ordered to be paid by Mr Baine. The issue on which the Claimant was successful was limited to the legal basis on which his attempt to join Mr Baine, not as house-owner, but as solicitor, and, vicariously, the other partners in the firm of which he was a member, was rejected. The affidavit filed on behalf of the Claimant noted that Mr Baine and Ms Wiley had the same lawyers at all relevant stages of the proceedings. If that is the basis upon which costs are sought against Ms Wiley, it is without substance or merit. The application should not have been made.
Carroll & O’Dea were represented by counsel before this Court and the position of the firm was known to the Court and was taken into account. No basis has been demonstrated for reopening the decision so as to make a different order to that made on 29 June with respect to the law firm.
The purpose for seeking these orders might have been obscure, but in written submissions in support of the present application, the solicitor for the Claimant asserted, baldly, that the intention was not merely that he should get 50% of his costs of the hearing in this Court, but that he should also recover the other 50% from Carroll & O’Dea. In the final paragraph of his submission he stated, in effect, that he was entitled to bring these proceedings as of right and that he has been entirely successful. Neither of those statements is correct and the application with respect to Carroll & O’Dea in relation to the costs order already made in this Court demonstrates no basis for reopening a considered judgment.
There remains the application with respect to the order as to costs before the Master. In respect of Mr Baine, the affidavit in support of the application stated (at par 25):
“Third, the appellant understands that the order of the Court of Appeal that Anthony Baine pay the appellant one-half of his costs of the appeal before Master Malpass is in substitution of the order of Master Malpass that the Appellant pay the costs of Anthony Baine in the appeal before Master Malpass.”
A similar submission is made (at par 27) in relation to the Master’s order that the Claimant pay the costs of Carroll & O’Dea.
The orders of this Court made on 29 June 2005 identified the matter already referred to as being the subject of a grant of leave to appeal, allowed the appeal with respect to that matter and “set aside the judgment of the Master in that regard”. The making of orders with respect to the costs before the Master was clearly intended to be in substitution for the costs order which he had made. If that matter required clarification, it is now clarified. There is no need to vary the orders made on 29 June 2005. The comments with respect to the possible liability of Carroll & O’Dea, made in relation to the costs before this Court, apply equally in relation to the costs before the Master. The application in that respect is also rejected.
Conclusions
Many of the submissions made in support of the application were tendentious. It should have been readily apparent to a competent practitioner that with the possible exception of the “clarification” in relation to costs orders made by the Master, this was an application to reopen the judgment of the Court given on 29 June 2005. Nevertheless, no attention was given to the principles according to which the Court might be prepared to reconsider a judgment before the entry of orders. Nor was any attention given to the prior judgments of this Court resisting applications in relation to variation of costs orders, for the purpose of making submissions which should properly have been made at the hearing and were not: see, eg, Timbarra Protection Coalition Inc v Ross Mining Ltd & Ors [1999] NSWCA 335.
It follows from these conclusions that the orders sought by this motion should be rejected and that Mr Grygiel should be ordered to pay the costs of the motion incurred by Mr Baine and Ms Wiley and by Carroll & O’Dea.
Suitors’ Fund certificates
There remain for consideration motions by Carroll & O’Dea and Mr Baine separately, but apparently to the same effect, that he be granted two certificates under the Suitors’ Fund Act 1951 (NSW) in respect of the orders for costs made against him on 29 June 2005. In relation to the application for leave to appeal to this Court and the appeal to the extent that leave was granted, each of Mr Baine and the law firm should have a certificate.
In relation to the application before the Master, they are also entitled to certificates if the Tribunal is a “court” for the purposes of s 6(1) of that Act and the proceedings are by way of an appeal. There are decisions of this Court that various tribunals constitute courts for the purposes of s 6(1). There is no reason to suppose that this Tribunal falls into a different category and Suitors’ Fund certificates have on a number of occasions been granted in relation to appeals involving that Tribunal or its predecessor: see, eg, Krslovic Homes Pty Ltd v Sparkes [2004] NSWSC 374 and authorities discussed by Shaw J at [36]-[45], including the discussion in this Court in Australian Postal Commission v Dao [No. 2] (1986) 6 NSWLR 497 at 512-516.
The term “appeal” is defined in s 2(1) of the Act to include “any proceeding in the nature of an appeal”. These proceedings are brought pursuant to s 67 of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) which provides for a right of “appeal” to the Court. That requirement is satisfied.
Accordingly Mr Baine and Carroll & O’Dea should have certificates with respect to the appeal to the Master.
Orders
I would propose the following orders:
(1)Motion by Mr Grygiel to vary the orders made by the Court on 29 June 2005 with respect to costs be dismissed with costs.
(2)Grant certificates under the Suitors’ Fund Act to Mr Baine and to Carroll & O’Dea in relation to -
(i)the proceedings in the Common Law Division no. 30088 of 2003; and
(ii) this appeal.

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LAST UPDATED: 12/12/2005