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
[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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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.