Hometeam Constructions Pty Ltd v McCauley (No 2)

[2007] NSWCA 278

NEW SOUTH WALES COURT OF APPEAL

CITATION:      Hometeam Constructions Pty Ltd v McCauley (No 2) [2007]  NSWCA 278

FILE NUMBER(S):
40587 of 2003

HEARING DATE(S):            On the papers

JUDGMENT DATE: 10 October 2007

PARTIES:
Hometeam Constructions Pty Ltd - Appellant
Fiona McCauley as Administrator for the Estate of the Late Luke McCauley - Respondent

JUDGMENT OF:      Ipp JA Tobias JA McColl JA   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):        DC 10346/02

LOWER COURT JUDICIAL OFFICER:     Murrell DCJ

LOWER COURT DATE OF DECISION:    17 June 2003

COUNSEL:
M L D Einfeld QC and A J L Ogborne - Appellant
E M Olsson SC - Respondent

SOLICITORS:
Bruce & Stewart Commercial Practice - Appellant
Deacons - Respondent

CATCHWORDS:
COSTS - Indemnity certificate under Suitors' Fund Act 1951

LEGISLATION CITED:
Suitors’ Fund Act 1951

CASES CITED:
Hometeam Constructions Pty Ltd v Fiona McCauley as Administrator for the Estate of the Late Luke McCauley [2005] NSWCA 303

DECISION:
1. The claimant to have a certificate under the Suitors’ Fund Act 1951 in relation to the costs of the appeal if otherwise qualified. 2. Each party to bear their own costs of the Notice of Motion.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40587/03
DC 10346/02

IPP JA
TOBIAS JA
McCOLL JA

Wednesday 10 October 2007

Hometeam Constructions Pty Ltd v Fiona McCauley as Administrator for the Estate of the Late Luke McCauley (No 2)

Judgment

1. THE COURT:     The Court delivered judgment in this matter on 7 September 2005:  Hometeam Constructions Pty Ltd v Fiona McCauley as Administrator for the Estate of the Late Luke McCauley [2005] NSWCA 303. It allowed the appeal and set aside the verdict for the respondent on the claim and all orders including costs orders made by Murrell DCJ. The matter was remitted to Murrell DCJ to quantify the loss or damage suffered by the appellant and to determine all questions of costs of the claim. There were also orders dealing with an Amended Cross-Claim, but it is unnecessary to refer to those. The respondent was ordered to pay the costs of and incidental to the appeal.

2. The principal judgment concerned the proper construction of a Notice of Default and Termination under a building contract.  The primary judge had concluded that the claimant’s late husband had properly terminated the building contract on the grounds that the appellant had failed to proceed with the building works “regularly and with due diligence and without delay” and had awarded the claimant damages.

3. In the principal judgment the Court held that the primary judge had erred in concluding the claimant was entitled to serve the Notice of Termination.

4. By Notice of Motion filed on 6 July 2007 the claimant (the respondent to the appeal) has sought an indemnity certificate pursuant to s 6 of the Suitors’ Fund Act 1951 and an order that each party bear their own costs of the Motion. The opponent (the appellant) consents to the orders sought.

5. The Motion was supported by an affidavit which disclosed that the claimant had fulfilled all her obligations in accordance with the orders of the Court of Appeal by paying the opponent total costs in the sum of $366,733.17 in relation to both the District Court proceedings and the Court of Appeal proceedings.

6. When the Motion was brought to the attention of the Court, it enquired, through the Registrar of the Court of Appeal, as to the reason the application had been first made close to two years after the principal judgment.

1. The claimant’s solicitors provided a detailed explanation which, without doing it an injustice, we believe to be summarised adequately by the observation that they took the view it was not until the costs the respondent was required to pay the appellant had been assessed that they were “finally and clearly ‘ordered to be paid and actually paid by the respondent’ as required, inter alia, in order to obtain an entitlement to be paid from the Suitors’ Fund under s 6(2)(a) of the Act.”

2. Section 6 of the Suitors’ Fund Act 1951 relevantly states:

   “6 Costs of certain appeals

   (1) If an appeal against the decision of a court:

   (a) to the Supreme Court on a question of law or fact, or

   (b) to the High Court from a decision of the Supreme Court on a question of law,

   succeeds, the Supreme Court may, on application, grant to the respondent to the appeal or to any one or more of several respondents to the appeal an indemnity certificate in respect of the appeal.

   …

   (2) Where a respondent to an appeal has been granted an indemnity certificate, the certificate shall entitle the respondent to be paid from the Fund:

   (a) an amount equal to the appellant’s costs of:

   (i) the appeal in respect of which the certificate was granted, and also

   (ii) where that appeal is an appeal in a sequence of appeals, any appeal or appeals in the sequence that preceded the appeal in respect of which the certificate was granted,

   ordered to be paid and actually paid by the respondent…”

3. It is usual for applications for certificates under s 6(1) to be made either at the conclusion of oral argument on appeal or, when judgment is delivered allowing an appeal. That is what should have occurred in this case.

4. The claimant’s solicitors have taken the view that the application should not be made until they were in a position to quantify the costs which would be the subject of the Suitors’ Fund certificate, if granted.

5. Nothing in s 6 indicates that this is the appropriate approach. We accept, as the claimant’s solicitors observe in their explanatory letter, that the Act does not place any limitation period upon the making of an application for the granting of an indemnity certificate, nevertheless practicality, including ensuring that the application is made to the Bench which heard the principal appeal, militates in favour of such an application being made in the manner we have earlier indicated. In addition, the principle of the finality of litigation would ordinarily make the Court reluctant to make a further order so long after judgment has been delivered.

6. As this is a novel situation, we are prepared in this instance to grant a certificate in this case.  This should not be regarded as creating any precedent. 

7. Accordingly, we order that:

   1.The claimant have a certificate under the Suitors’ Fund Act 1951 in relation to the costs of the appeal if otherwise qualified.

   2.          Each party to bear their own costs of the Notice of Motion.

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LAST UPDATED:     10 October 2007