May v Christodoulou

Case [2011] NSWCA 75


Court of Appeal

New South Wales

Case Title: May v Christodoulou
Medium Neutral Citation: [2011] NSWCA 75
Hearing Date(s): 16 February 2011
Decision Date: 04 April 2011
Jurisdiction:
Before:

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

Legislation Cited:

Civil Procedure Act 2005 (NSW)
Home Building Act 1989 (NSW)
Suitors Fund Act 1951 (NSW)

Home Building Regulation 2004 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Rules of the Supreme Court of Queensland 1900 (Qld)

County Courts Act 1888 (UK)
Supreme Court of Judicature Act 1874 (UK)
Supreme Court of Judicature Act 1890 (UK)

Cases Cited:

Bay Marine Pty Ltd v Clayton Country Properties Pty Ltd (1986) 8 NSWLR 104
Broad v Perkins (1888) 21 QBD 533
Commonwealth v Verwayen [1990] HCA 39; 170 CLR 394
Dymocks Franchise Systems (NSW) Pty Ltd v Todd [2004] UKPC 39; 1 WLR 2807
Eyres v Butt [1986] 2 Qd R 243
Flinn v Flinn [1999] VSCA 134; 3 VR 712
Flower & Hart v White Industries (Qld) Pty Ltd [1999] FCA 773; 87 FCR 134
FPM Constructions v Council of the City of Blue Mountains [2005] NSWCA 340
Frinton & Walton UDC v Walton & District Sand and Mineral Co Ltd [1938] 1 All ER 649
Gore v Justice Corporation Pty Ltd [2002] FCAFC 83, 119 FCR 429
Hamilton v Al Fayed (No 2) [2002] EWCA Civ 665; [2003] QB 1175
Hubbard Association of Scientologists International v Anderson [1972] VR 340
In re Jones v James (1850) 19 LJQB 257
In re Land and Property Trust Co Plc [1991] 1 WLR 601; 3 All ER 409
Kebaro Pty Ltd v Saunders…

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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.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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