Jandson Pty Ltd v Edmonds

[2022] NSWCA 61

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Jandson Pty Ltd v Edmonds [2022] NSWCA 61

Hearing dates:

7 April 2022

Date of orders:

13 April 2022

Decision date:

13 April 2022

Before:

Bell CJ at [1];
Macfarlan JA at [27];
White JA at [28]

Decision:

Application for leave to appeal refused with costs.

Catchwords:

CIVIL PROCEDURE – Court of Appeal – application for leave to appeal – where alleged that primary judge had overlooked and or not dealt with a particular argument in relation to costs – where it had been open to the applicant for leave to have approached the primary judge pursuant to UCPR 36.16 to vary or set aside her order by reference to the argument not addressed – where that course not taken – where it was not possible for the Court of Appeal finally to dispose of the issue without remitting proceedings to the District Court – where the interests of justice did not warrant the grant of leave to appeal

Legislation Cited:

Civil Procedure Act 2005 (NSW) ss 60, 98(4)(b)

Legal Profession Act 2004 (NSW) s 364

Legal Profession Uniform Law (NSW) s 172(1)(a)

Uniform Civil Procedure Rules 2005 (NSW) rr 36.16, 42.35

Cases Cited:

Consolidated Lawyers Ltd v Abu-Mahmoud; Abu-Mahmoud v Consolidated Lawyers Ltd [2016] NSWCA 4

Crawley v Short [2009] NSWCA 410; (2009) 262 ALR 654

eInduct Systems Pty Ltd v 3D Safety Services Pty Ltd (2015) 90 NSWLR 451; [2015] NSWCA 284

Miller Heiman Pty Ltd v Sales Principles Pty Ltd (2017) 94 NSWLR 500; [2017] NSWCA 106

Nominal Defendant v Livaja [2011] NSWCA 121

Roluke Pty Ltd v Lamaro Consultants Pty Ltd (No 2) [2009] NSWCA 21

Category:

Principal judgment

Parties:

Jandson Pty Limited (Applicant)
John Edmonds (Respondent)

Representation:

Counsel:
M Klooster with F Clark (Applicant)
P Dodson (Respondent)

Solicitors:
Michael Atkinson & Associates (Applicant)
Elias Gates (Respondent)

File Number(s):

2021/344233

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Civil

Date of Decision:

25 October 2021

Before:

E Olsson SC DCJ

File Number(s):

2018/324418

HEADNOTE

[This headnote is not to be read as part of the judgment]

Jandson Pty Limited (the applicant) sought leave to appeal against a decision of the primary judge to award Mr John Edmonds (the respondent) his costs on the ordinary basis following an award to him of damages in the sum of $24,282.75 (excluding interest) in proceedings in the District Court of New South Wales in a claim relating to building defects in the respondent’s home. The applicant for leave to appeal was the respondent’s builder.

The trial leading to the award of damages ran for six days with the respondent originally claiming damages in the sum of $610,501. The sum awarded was approximately 4 per cent of this amount.

The respondent succeeded at trial on the issue of brickwork in his home and, in particular, the defective mortar used in its construction. The primary judge accepted evidence led by the applicant that…