John Anthony Arena Pty Ltd v Franpina Developments Pty Ltd

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

John Anthony Arena Pty Ltd v Franpina Developments Pty Ltd [2022] NSWCA 139

Hearing dates:

2 August 2022

Date of orders:

5 August 2022

Decision date:

05 August 2022

Before:

Macfarlan JA
Kirk JA

Decision:

Application for leave to appeal dismissed with costs.

Catchwords:

COSTS — Application for leave to appeal from costs order — Proceedings dismissed by consent — Costs awarded against defendants — Whether defendants capitulated to plaintiff — No issue of principle or question of general public importance

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 98(1)

Contracts Review Act 1980 (NSW)

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

Uniform Civil Procedure Rules, r 42.1

Cases Cited:

Dalma Formwork (Australia) Pty Ltd v Maricic (No 3) [2008] NSWCA 29

Edwards Madigan Torzillo Briggs Pty Ltd v Gloria Stack [2003] NSWCA 302

Hillsea Pty Ltd v Joseph [2020] NSWCA 55

House v The King (1936) 55 CLR 499; [1936] HCA 40

Jaycar Pty Limited v Lombardo [2011] NSWCA 284

Re Minister for Immigration and Ethnic Affairs; Ex Parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6

Shellharbour City Council v Minister for Local Government [2017] NSWCA 256

Category:

Procedural rulings

Parties:

John Anthony Arena Pty Ltd (First Applicant)
Dr John Anthony Arena (Second Applicant)

Franpina Developments Pty Ltd (Respondent)

Representation:

Advocates:

J M Ireland QC, solicitor (Applicants)

C J Birch SC (Respondent)

Solicitors:

D C Balog & Associates (Applicants)

Hamilton Locke (Respondent)

File Number(s):

2022/62942

Publication restriction:

None

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Civil

Citation:

Franpina Developments Pty Ltd v John Anthony Arena Pty Ltd [2022] NSWSC 57

Date of Decision:

4 February 2022

Before:

Darke J

File Number(s):

2020/00364465

Judgment

1. MACFARLAN JA: I agree with Kirk JA.

2. KIRK JA: The applicants seek leave to appeal from a decision of Darke J of 4 February 2022, in which his Honour ordered the applicants to pay the costs of the respondent on the ordinary basis. The proceedings, which had been brought by the respondent, were resolved by consent orders. His Honour made the costs order on the basis that those orders constituted a capitulation on the part of the applicants.

3. In my view the application for leave to appeal should be refused with costs.

Background

4. The first applicant, John Anthony Arena Pty Ltd (JAA), is a company controlled by the second applicant, Dr John Arena and his wife. Dr Arena’s mother, Mrs Giuseppa Arena, is the owner of a property in North Ryde. She is also a director and the sole shareholder of the respondent, Franpina Developments Pty Ltd (Franpina).

5. On 26 June 2019 Mrs Arena, in her personal capacity, and JAA entered into a Put and Call Option Deed (the Deed), under which Mrs Arena granted JAA the option of purchasing the property in North Ryde.

6. By a statement of claim filed on 23 December 2020, Franpina challenged the Deed.…