Konstandopoulos v Giammaria - [2004] NSWSC 1010

CITATION: Konstandopoulos v Giammaria [2004] NSWSC 1010

HEARING DATE(S): 19 October 2004

JUDGMENT DATE:
12 November 2004

JURISDICTION:
Equity Division

JUDGMENT OF: Windeyer J at 1

DECISION: Declaration as to entitlement to future set off.

CATCHWORDS: Practice and Procedure - costs - ownership of costs in Compensation Court proceedings - where solicitors claim proprietary right in judgment for costs in place of claimant - whether solicitors entitled to an equitable charge over judgment for costs - Practice and Procedure - costs - set off- entitlement of plaintiffs to set off amount of costs as assessed against judgment obtained against defendant in Local Court - whether entitlement to an equitable charge operates to defeat plaintiffs' right to set off - Statutory interpretation - Workplace Injury Management and Workers Compensation Act 1998 - ss 105(1), 112(2)(b) and 116

LEGISLATION CITED: Workplace Injury Management and Workers Compensation Act 1998
Compensation Court Repeal Act 2002

CASES CITED: Akki Pty Ltd v Martin Hall Pty Ltd (1994) 35 NSWLR 470
Ex Parte Patience; Makinson v The Minister (1940) 40 SR (NSW) 96
Miller v Director of Public Prosecutions (No 2) [2004] NSWCA 249
Public Trustee v A M Hoipo Pty Limited (1999) 19 NSWCCR 215
Puddephatt v Leith (No 2) [1916] 2 Ch 168
Re A Debtor, No 21 of 1950 (No 2); Ex parte Petitioning Creditors v The Debtor [1951] Ch 612
Reid v Cuppa [1915] 2 KB 147
Wentworth v Wentworth (Young J 12 December, 2000 unreported)

PARTIES :
Nickolas Konstandopoulos and Vanessa Konstandopoulos (Plaintiffs)
Robert Vito Giammaria (First Defendant)
Russell Keddie, Tony Barakat and Scott Ralston trading as Keddies Litigation Lawyers (Second Defendant)

FILE NUMBER(S): SC 4724 of 2004

COUNSEL: Mr B Donovan QC with him Mr T Hall (Plaintiffs)
No appearance (First Defendant)
Mr Paul Barnes (Second Defendant)

SOLICITORS: HAL Lawyers (Plaintiffs)
No appearance (First Defendant)
Keddies (Second Defendant)

- 8 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WINDEYER J

FRIDAY 12 NOVEMBER 2004

4724/04 NICKOLAS KONSTANDOPOULOS & ANOR V GIAMMARIA & ANOR

JUDGMENT

1 This is an application by the plaintiffs, Mr and Mrs Konstandopoulos, seeking an order – (but really a declaration) - that they are entitled to set off against the costs they are liable to pay Mr Giammaria pursuant to an order in the Compensation Court, the amount of a judgment entered against Mr Giammaria, in Kogarah Local Court as a result of orders made by the Consumer Trader and Tenancy Tribunal (CTTT).

Background to the Current Proceedings

2 The circumstances of this case are unfortunate. The plaintiffs, Mr and Mrs Konstandopoulos engaged the first defendant, Mr Giammaria, to undertake renovations on their home at Arncliffe. The completed work was unsatisfactory and it further appears that Mr Giammaria did not hold a valid building licence.

3 Mr Giammaria sustained injuries while working on the home of the plaintiffs. Proceedings were commenced against Mr and Mrs Konstandopoulos, who had no Workers Compensation Insurance, in the Compensation Court (proceedings no. 52557/01). Mr Giammaria instructed Keddies…

Grounds of appeal

[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.

Continue reading Konstandopoulos v Giammaria

Details

AGLC: Konstandopoulos v Giammaria [2004] NSWSC 1010
Case: [2004] NSWSC 1010
Decision Date: 12 November 2004

CaseChat Overview and Summary

In the case of Konstandopoulos v Giammaria, the dispute revolves around the ownership of costs incurred in Compensation Court proceedings and the entitlement to set these costs off against a judgment obtained. The matter was heard in the Supreme Court of New South Wales. The plaintiff, Mr. Konstandopoulos, sought to set off the costs he incurred against the judgment obtained against the defendant, Mr. Giammaria, in a Local Court proceeding. The solicitors for the plaintiff argued that they had a proprietary right in the judgment for the costs incurred and sought to impose an equitable charge over the judgment to secure their costs. This raised the question of whether the solicitors were entitled to such an equitable charge and, if so, whether it would affect the plaintiff's ability to set off the costs against the judgment.

The court was required to interpret the relevant statutory provisions, specifically sections 105(1), 112(2)(b), and 116 of the Workplace Injury Management and Workers Compensation Act 1998, to determine the legal framework governing the ownership and set-off of costs. The court also had to consider whether the solicitors' claim to an equitable charge over the judgment would defeat the plaintiff's right to set off the costs against the judgment. The primary legal issue was whether the solicitors' proprietary claim could override the statutory right of the plaintiff to set off costs against a judgment.

The Supreme Court held that the solicitors did not have a proprietary right in the judgment for the costs incurred by the plaintiff. The court reasoned that the statutory provisions did not support the notion of an equitable charge over the judgment being imposed by the solicitors. Furthermore, the court found that the plaintiff's entitlement to set off the costs as assessed against the judgment obtained in the Local Court was not affected by any claim to an equitable charge. The court concluded that the statutory right to set off costs was paramount and could not be overridden by the solicitors' proprietary claim. Therefore, the plaintiff was entitled to set off the costs against the judgment, and the solicitors' claim to an equitable charge was rejected.

The final orders of the court confirmed that the plaintiff, Mr. Konstandopoulos, could set off the costs as assessed against the judgment obtained against the defendant, Mr. Giammaria. The court denied the solicitors' claim for an equitable charge over the judgment, thereby upholding the plaintiff's right to set off costs. The judgment made it clear that statutory provisions regarding the setting off of costs in Compensation Court proceedings take precedence over any proprietary claims by solicitors.

Orders