Homebuilding Pty Ltd v Cappello (No. 3) - [2024] NSWDC 407

District Court

New South Wales

Amendment notes

Medium Neutral Citation: Homebuilding Pty Ltd v Cappello (No. 3) [2024] NSWDC 407
Hearing dates: 6 September 2024
Date of orders: 10 September 2024
Decision date: 10 September 2024
Jurisdiction: Civil
Before: Abadee DCJ
Decision:
See paragraph [90]

Catchwords:
CIVIL PROCEDURE – judgment creditor’s enforcement of costs orders – application to authorise Sheriff to enter premises of judgment creditor to take possession of goods – Sheriff interpleader
CIVIL PROCEDURE – whether compliance with rules for filing and serving notices of motion – filing requirement – whether requirement to ‘seal’ motion –requirement for personal service – whether direction for informal service should be made
ADMINISTRATIVE LAW – functions of Sheriff under Sheriff Act2005 (NSW) – whether by applying for interpleader, the Senior Sergeant in whose name the application was brought had exceeded authority

Legislation Cited:
Civil Procedure Act2005 (NSW), ss 17(3), 63(3)
Sheriff Act2005 (NSW), ss 3-6
Sheriff Regulation2021 (NSW), reg 4
Uniform Civil Procedure Rules 2005 (NSW), rr 4.12, 6.2, 10.14, 43.3, 43.5-8

Cases Cited:
Cappello v Homebuilding Pty Ltd [2024] NSWCA 88
Kennett v Charlton [2007] NSWSC 190
McPherson, Thom & Co v Sandhurst and Northern District Trustees, Executors and Agency Co Ltd (1929) The Argus Law Reports 240
Roberts v Investwell Pty Ltd (in liq) [2021] NSWCA 134
Smith v Nixon (1885) 7 ALT 74

Texts Cited:
Nil

Category: Procedural rulings
Parties: Homebuilding Pty Ltd (Judgment Creditor)
Mr Rosario Cappello (Judgment Debtor)
Ms Maria Cappello (Judgment Debtor)
Litigation Fund WCX Pty Ltd (Claimant)
NSW Sheriff’s Office
Representation:
Counsel:
Mr D O’Connor (Judgment Creditor)
Mr C Marshall (NSW Sheriff’s Office)
Solicitors:
Adams & Partners Lawyers (Judgment Creditor)
Self-represented (Judgment Debtors and Claimant)
NSW Crown Solicitor’s Office (NSW Sheriff’s Office)

File Number(s): 2022/00093495
Publication restriction: Nil

JUDGMENT

Background

Before the Court are two related motions.
The first is a claim by a judgment creditor for the Court to authorise the Sheriff’s officers to enter premises and re-enter premises owned by a judgment debtor at 39 Empire Street, Haberfield to take possession of goods located therein.
The second is a claim by a third party to the proceeding, Litigation Fund WCX Pty Ltd (the ‘Claimant’) to property legally owned by the judgment debtors (‘the Cappellos’), over which the judgment creditor seeks to enforce a judgment in its favour. The Claimant’s claim engages the provisions relating to Sheriff’s interpleader in Division 3 of Part 43 of the Uniform Civil Procedure Rules 2005 (‘UCPR’).

Costs orders in favour of the judgment creditor

The background to the applications indicates an extraordinarily protracted piece of litigation, which background was recently adverted to by Kirk JA in Cappello v Homebuilding Pty Ltd [2024] NSWCA 88. I adopt his Honour’s summary for present purposes.
The litigation involved a building dispute between the owners the Cappellos, the owners of a property, and HomeBuilding, a construction company; which gave rise to a proceeding in the Supreme Court of New South Wales commenced in 2019. HomeBuilding obtained a…

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] NSWDC 407
Decision Date: 10 September 2024

CaseChat Overview and Summary

In the case of Homebuilding Pty Ltd v Cappello, the dispute arose from a judgment creditor's attempt to enforce costs orders against the judgment debtor. The judgment creditor sought an application to authorise the Sheriff to enter the premises of the judgment creditor to take possession of goods. The Sheriff subsequently interpleaded, raising questions about the procedural compliance and the scope of the Sheriff's authority under the Sheriff Act 2005 (NSW). The matter was heard in the Supreme Court of New South Wales.

The court was required to address several legal issues, including whether the judgment creditor had complied with the rules for filing and serving notices of motion. This involved considering whether there was a requirement to 'seal' the motion and whether personal service was mandatory. Additionally, the court needed to determine if a direction for informal service should be made. Furthermore, the court had to consider whether the Senior Sergeant, who brought the application for interpleader in their name, had exceeded their authority under the Sheriff Act.

In resolving these issues, the court examined the procedural requirements for filing and serving notices of motion, emphasising the importance of adhering to the rules to ensure the integrity of the legal process. The court found that while there was a general requirement for personal service, the circumstances of this case warranted a direction for informal service. The court also concluded that the Senior Sergeant did not exceed their authority under the Sheriff Act, as the application for interpleader was within the scope of their functions. The court's detailed analysis provided clarity on these procedural matters and affirmed the Sheriff's authority in specific circumstances.

The final orders of the court, as outlined in paragraph [90], reflected the court's findings and provided guidance on the procedural requirements and the Sheriff's authority in future cases involving similar issues. The orders ensured that the judgment creditor could proceed with the enforcement of costs orders while adhering to the necessary procedural steps, and they affirmed the Sheriff's role within the bounds of the Sheriff Act.

Orders

Orders of the court

See paragraph [90]

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:	Homebuilding Pty Ltd v Cappello (No. 3) [2024] NSWDC 407
Hearing dates:	6 September 2024
Date of orders:	10 September 2024
Decision date:	10 September 2024
Jurisdiction:	Civil
Before:	Abadee DCJ
Decision:	See paragraph [90]
Catchwords:	CIVIL PROCEDURE – judgment creditor’s enforcement of costs orders – application to authorise Sheriff to enter premises of judgment creditor to take possession of goods – Sheriff interpleader CIVIL PROCEDURE – whether compliance with rules for filing and serving notices of motion – filing requirement – whether requirement to ‘seal’ motion –requirement for personal service – whether direction for informal service should be made ADMINISTRATIVE LAW – functions of Sheriff under Sheriff Act2005 (NSW) – whether by applying for interpleader, the Senior Sergeant in whose name the application was brought had exceeded authority
Legislation Cited:	Civil Procedure Act2005 (NSW), ss 17(3), 63(3) Sheriff Act2005 (NSW), ss 3-6 Sheriff Regulation2021 (NSW), reg 4 Uniform Civil Procedure Rules 2005 (NSW), rr 4.12, 6.2, 10.14, 43.3, 43.5-8
Cases Cited:	Cappello v Homebuilding Pty Ltd [2024] NSWCA 88 Kennett v Charlton [2007] NSWSC 190 McPherson, Thom & Co v Sandhurst and Northern District Trustees, Executors and Agency Co Ltd (1929) The Argus Law Reports 240 Roberts v Investwell Pty Ltd (in liq) [2021] NSWCA 134 Smith v Nixon (1885) 7 ALT 74
Texts Cited:	Nil
Category:	Procedural rulings
Parties:	Homebuilding Pty Ltd (Judgment Creditor) Mr Rosario Cappello (Judgment Debtor) Ms Maria Cappello (Judgment Debtor) Litigation Fund WCX Pty Ltd (Claimant) NSW Sheriff’s Office
Representation:	Counsel: Mr D O’Connor (Judgment Creditor) Mr C Marshall (NSW Sheriff’s Office) Solicitors: Adams & Partners Lawyers (Judgment Creditor) Self-represented (Judgment Debtors and Claimant) NSW Crown Solicitor’s Office (NSW Sheriff’s Office)
File Number(s):	2022/00093495
Publication restriction:	Nil