Housman v Camuglia

Case [2021] NSWCA 106


Court of Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Housman v Camuglia [2021] NSWCA 106
Hearing dates: 28 April 2021
Decision date: 26 May 2021
Before: Bell P at [1];
Leeming JA at [2];
White JA at [95].
Decision:

Appeal dismissed with costs.

Catchwords:

CONTRACT - damages - claim for consequential loss - construction works caused damage to neighbour’s land - claim for lost rent - trial judge found apartments unlettable in light of damage to stairway - finding based on evidence of landlord and letting agent - no reference in reasons to unchallenged engineering evidence that stairway safe - whether reasons of trial judge inadequate - inutility of inadequate reasons as a ground where appeal is by way of rehearing - whether trial judge misused evidence admitted on limited basis - no error made out

APPEALS - requirement of leave - whether appellants required leave for separate challenge to costs order based on rejection of Calderbank offer in circumstances where there was an appeal as of right - construction of “an appeal from a judgment or order as to costs only” in District Court Act 1973 (NSW), s 127(2)(b) - history of s 127(2)(b) and s 101(2)(c) of Supreme Court Act 1970 (NSW) - history of United Kingdom antecedents - appellants entitled to challenge special costs order as of right

COSTS - Calderbank letter - whether error in finding that appellants had unreasonably rejected offer - significance of factual error in letter - significance of offer being rejected before service of all evidence - no error made out

Legislation Cited:

Administration of Justice Act 1840 (NSW) (4 Vic No 22), s 21

Advancement of Justice Act 1841 (NSW) (5 Vic No 9), s 13

Appellate Jurisdiction Act 1876 (UK)

Civil Liability Act 2002 (NSW), ss 5D, 5E

Courts Legislation Further Amendment Act 1995 (NSW), Schedule 1 Item 1.3 [10]

District Court Act 1973 (NSW) (prior to 1995), ss 126, 127, s 128(2A)

District Court Act 1973 (NSW), s 127

District Courts Act 1858 (NSW) (22 Vic No 18), s 94

District Courts Act 1901 (NSW), s 107

District Courts Act 1912 (NSW), s 142

Equity Act 1880 (NSW), s 70

Equity Act 1901 (NSW), s 81

Judicature Act 1873 (UK), s 49

Supreme Court Act 1970 (NSW) (as enacted), s 101(3)(a)

Supreme Court Act 1970 (NSW), s 101(2)(c)

Supreme Court of Judicature (Consolidation) Act 1925 (UK), s 31

The Judicature Act 1883 (Vic) (47 Vic No 761), s 27

Uniform Civil Procedure Rules 2005 (NSW) rr 36.16, 51.41

Cases Cited:

AF Concrete Pumping Pty Ltd v Ryan [2014] NSWCA 346

Apache Northwest Pty Ltd v Department of Mines and Petroleum [2012] WASCA 167

Arena Management Pty Ltd (rec and mgrapptd) v Campbell Street Theatre Pty Ltd (2011) 80 NSWLR 652; [2011] NSWCA 128

Attenborough v Kemp (1861) 14 Moo PC 351; 15 ER 338

Attorney-General v Butcher (1827) 4 Russ 180; 38 ER 773

Bunge SA v Nidera BV [2015] UKSC 43

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Details
AGLC
Housman v Camuglia [2021] NSWCA 106
Case
[2021] NSWCA 106
Decision Date

CaseChat Overview and Summary

The appeal concerned a dispute between neighbours, Housman (appellants) and Camuglia (respondent), arising from construction works undertaken by Housman that allegedly caused damage to Camuglia's adjoining property. Camuglia claimed damages for consequential loss, specifically lost rent due to apartments being unlettable as a result of damage to a stairway. The matter was heard in the Court of Appeal of New South Wales.

The Court of Appeal was required to determine whether the trial judge's reasons for finding the apartments unlettable were inadequate, particularly in light of unchallenged engineering evidence that the stairway was safe. It also had to consider whether the trial judge had misused evidence admitted on a limited basis. Furthermore, the court had to determine whether the appellants required leave to appeal a costs order, which was based on the rejection of a *Calderbank* offer, given that they had an appeal as of right against the primary judgment. Finally, the court considered whether the trial judge erred in finding that the appellants had unreasonably rejected the *Calderbank* offer, taking into account a factual error in the letter and the timing of its rejection.

The Court of Appeal held that the inadequacy of reasons, if any, was not a ground for appeal where the appeal was by way of rehearing, and that no error was made out regarding the misuse of evidence. The court also determined, after considering the legislative history of section 127(2)(b) of the *District Court Act 1973* (NSW) and its antecedents, that the appellants were entitled to challenge the special costs order as of right. Regarding the *Calderbank* offer, the court found no error in the trial judge's assessment that it had been unreasonably rejected, notwithstanding the factual error in the letter and the timing of its rejection.

Consequently, the appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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