Macfarlan JA at 1, Handley AJA at 3, Sackville AJA at 56.
Decision:
1. Appeal allowed. 2. Set aside the order made by Robison DCJ on 15 May 2009 that the appellant be jointly and severally liable with Belltree Constructions Pty Ltd to pay the respondent's costs in the District Court proceedings. 3. The respondent pay the appellant's costs of the appeal. 4. Direct that the respondent have a certificate under the Suitors Fund Act 1951 (NSW), if qualified. [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:
COSTS - director represents defendant company at trial - plaintiff succeeds - non-party costs order made against director - whether primary Judge erred in making the order - criteria for making a costs order against a director representing a defendant company
PROCEDURE - Home Building Act 1989 (NSW), s 48L - defendant applies for transfer of the proceedings - application made on third day of hearing - application refused - whether refusal deprived Court of jurisdiction - whether right to apply for a transfer had been waived
[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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Details
AGLC
May v Christodoulou [2011] NSWCA 75
Case
[2011] NSWCA 75
Decision Date
CaseChat Overview and Summary
The appeal concerned a non-party costs order made against Mr May, the director of Belltree Constructions Pty Ltd, who represented the company at trial. The plaintiff, Christodoulou, had succeeded in the District Court proceedings against Belltree Constructions. Mr May sought to appeal the order that he be jointly and severally liable with the company for the respondent's costs.
The primary legal issues before the Court of Appeal were whether the primary judge erred in making the non-party costs order against Mr May, and whether the refusal of an application to transfer the proceedings under section 48L of the *Home Building Act 1989* (NSW) deprived the court of jurisdiction or constituted a waiver of the right to apply for such a transfer.
The Court of Appeal allowed the appeal, setting aside the non-party costs order. The court reasoned that the criteria for making a non-party costs order against a director representing a company had not been met. Furthermore, the refusal of the transfer application, made late in the hearing, did not deprive the court of jurisdiction, nor was the right to apply for a transfer waived by its late making. The respondent was ordered to pay the appellant's costs of the appeal and was granted a certificate under the *Suitors Fund Act 1951* (NSW), if qualified.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside the order made by Robison DCJ on 15 May 2009 that the appellant be jointly and severally liable with Belltree Constructions Pty Ltd to pay the respondent's costs in the District Court proceedings.
3. The respondent pay the appellant's costs of the appeal.
4. Direct that the respondent have a certificate under the Suitors Fund Act 1951 (NSW), if qualified.
[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.]