McInnes v Rheem Australia Pty Limited

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Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: McInnes v Rheem Australia Pty Limited [2021] NSWCA 89
Hearing dates: 4 May 2021
Date of orders: 17 May 2021
Decision date: 17 May 2021
Before: Bell P at [1]
Gleeson JA at [2]
Payne JA at [47]
Decision:

Summons seeking leave to appeal is dismissed with costs.

Catchwords:

COSTS – whether usual order for costs should be displaced – where respondent successful party overall – where primary judge apportioned costs – respondent awarded costs up to date shortly before hearing and thereafter no order for costs as between respondent and applicant – whether exercise of discretion miscarried – Uniform Civil Procedure Rules 2005 (NSW), r 42.1

APPEALS – new point on appeal – where applicant for leave sought to raise new and different costs application on appeal – inimical to the interests of justice to allow new argument

APPEALS – leave to appeal – practice and procedure – challenge to costs order – no question of principle or general public importance – whether an injustice which is more than merely arguable – whether failure to consider material consideration – where reasonableness of applicant’s conduct of the proceedings not relied upon below – leave to appeal refused

Legislation Cited:

Conveyancing Act 1919 (NSW), s 37A

Family Law Act 1975 (Cth)

Real Property Act 1900 (NSW), s 42

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

Uniform Civil Procedure Rules 2005 (NSW), r 42.1

Cases Cited:

Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164

Commonwealth of Australia v Gretton [2008] NSWCA 117

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

Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261

Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219

Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 3) (1998) 30 ACSR 20

Forster v Farquhar [1893] 1 QB 564

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

James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296

Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274

Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30

Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631

Re the Will of F B Gilbert (Deceased) (1946) 46 SR (NSW) 318

Rheem Australia Pty Ltd v McInnes [2020] NSWSC 1313

Rheem Australia Pty Ltd v McInnes (No 2) [2020] NSWSC 1665

Roberts v Rodier [2006] NSWSC 1084

Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206

Sze Tu v Lowe (No 2) [2015] NSWCA 91

Tomanovic v Global Mortgage Equity Corporation Pty Ltd (No 2) [2011] NSWCA 256; (2011) 288 ALR 385

University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 59 ALJR 481

Water Board v Moustakas (1988) 180 CLR 491

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Details
Case
[2021] NSWCA 89
Decision Date

CaseChat Overview and Summary

McInnes (the applicant) sought leave to appeal a costs order made by the primary judge in proceedings against Rheem Australia Pty Limited (the respondent). The respondent was the successful party overall, but the primary judge had apportioned costs, ordering that the respondent recover its costs up to a date shortly before the hearing, with no order for costs thereafter as between the respondent and the applicant. The applicant contended that this exercise of discretion miscarried.

The central legal issue before the Court of Appeal was whether the primary judge erred in their exercise of discretion regarding the costs order, specifically whether the usual order for costs should have been displaced. The applicant also sought to raise a new costs argument on appeal, which was distinct from the arguments presented at first instance.

The Court of Appeal considered the principles governing appeals against costs orders, noting that leave to appeal is generally only granted where there is a question of principle or general public importance, or where there is an injustice that is more than merely arguable. The Court found that the applicant's attempt to raise a new argument on appeal was inimical to the interests of justice, particularly as the reasonableness of the applicant's conduct of the proceedings had not been relied upon below. The Court concluded that there was no failure to consider a material consideration and that the applicant had not demonstrated an injustice that warranted granting leave to appeal.

The summons seeking leave to appeal was dismissed, and the applicant was ordered to pay the respondent's costs.

Orders

Orders of the court

Summons seeking leave to appeal is dismissed with costs.

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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