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…

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: [2005] NSWCA 434
Decision Date: 9 December 2005

CaseChat Overview and Summary

The case of *Grygiel v Baine (No 2)* concerned a motion brought by Mr Grygiel seeking to vary the costs orders made by the Court on 29 June 2005. Mr Baine and Carroll & O’Dea were the respondents to this motion. The dispute arose from the court's previous judgment, where an appeal was allowed, a prior judgment was set aside, and costs orders were made. Mr Grygiel sought to alter these costs orders, arguing that the court had failed to invite submissions on costs and that the original costs orders were not sufficiently clear.

The primary legal issue before the court was whether the costs orders made on 29 June 2005 should be varied under the slip rule. This involved determining if the court had inadvertently failed to address costs or if the existing orders were ambiguous. A secondary issue was whether Mr Baine and Carroll & O’Dea were entitled to certificates under the Suitors’ Fund Act 1951 (NSW) in relation to the costs orders made against Mr Grygiel.

The court dismissed Mr Grygiel's motion to vary the costs orders, finding that the original orders were intended to substitute the costs order made by the Master and that no clarification was necessary. The court reasoned that Mr Grygiel's application was essentially an attempt to reopen the judgment of 29 June 2005, which was not permissible under the principles governing reconsideration of judgments before the entry of orders. The court also noted the failure of Mr Grygiel's counsel to make proper submissions on costs at the original hearing, referencing prior authorities that resist such applications. Regarding the Suitors’ Fund Act, the court granted certificates to Mr Baine and Carroll & O’Dea for both the appeal proceedings and the proceedings before the Master, finding that the Tribunal in question was a "court" for the purposes of the Act and that the proceedings were by way of an appeal.

Consequently, Mr Grygiel's motion was dismissed with costs. Mr Baine and Carroll & O’Dea were granted certificates under the Suitors’ Fund Act 1951 (NSW) in relation to the costs orders made against Mr Grygiel.

Orders

Orders of the court

(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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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