Maxwell-Smith v Hall [No 2]

[2013] NSWCA 3

Court of Appeal

New South Wales

Case Title:

Maxwell-Smith v Hall [No 2]

Medium Neutral Citation:

[2013] NSWCA 3

Hearing Date(s):

31 August 2012

Decision Date:

05 February 2013

Before:

Basten JA;
Tobias AJA

Decision:

(1) With respect to the application for leave to appeal from orders made in the District Court on 20 April 2012, in addition to the orders made on 31 August 2012, and with respect to the third respondent:

(a) grant leave to the applicants to appeal in respect of orders 1-4;
(b) by consent, allow the appeal and set aside orders 1-4.

(2) As between the applicants and the third respondent, make no order as to the costs of the proceedings in this Court.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

PROCEDURE - civil - costs - respondent accepted appeal to be allowed on new ground - grounds raised by appellant rejected - whether costs should follow the event

Cases Cited:

Maxwell-Smith v Hall [2012] NSWCA 284

Category:

Consequential orders

Parties:

Inge Maxwell-Smith (First Applicant)
Eugene Maxwell-Smith (Second Applicant)
Steve Hall (First Respondent)
S & E Hall Pty Ltd (Second Respondent)
Hugo White (Third Respondent)

Representation

- Counsel:

Counsel:

First Applicant self-represented
Mr D H Hooke SC/Ms T Stevens (First and Second Respondents)
Mr N J Beaumont (Third Respondent)

- Solicitors:

Solicitors:

Applicants self-represented
Ellison Tillyard Callanan (First and Second Respondents)
Middletons (Third Respondent)

File Number(s):

CA 2012/154529

Decision Under Appeal

- Court / Tribunal:

District Court

- Before:

Colefax DCJ

- Date of Decision: 

20 April 2012

- Court File Number(s):

DC 2010/29575

JUDGMENT

1. THE COURT: On 31 August 2012 the Court handed down judgment in an application for leave to appeal from interlocutory orders made in the District Court: Maxwell-Smith v Hall [2012] NSWCA 284. Details as to the nature of the issues in dispute may be obtained from that judgment.

2. In brief, there was a building dispute between the applicants (as owners) and the corporate respondent, S & E Hall Pty Ltd, a building contractor ("the builder"). A claim in relation to defective residential building work led to proceedings being brought by the applicants against the builder. Those proceedings resulted in the applicants being required to pay an amount to the builder, which through its solicitor, Mr White, it sought to enforce by the issue of bankruptcy notices. Three bankruptcy notices were issued in the Federal Court; the first was withdrawn, the second resulted in a sequestration order but was subsequently annulled and the third was set aside. The applicants then commenced proceedings in the District Court seeking damages for abuse of process against Mr Hall, the builder…