Mendonca v Tonna - [2025] NSWCA 82

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Mendonca v Tonna [2025] NSWCA 82
Hearing dates: 22 April 2025
Date of orders: 29 April 2025
Decision date: 29 April 2025
Before: Kirk JA; Price AJA at [1]
Decision:
In matter number 2025/039861 (the application for leave to appeal):
(1) Application for leave to appeal dismissed.
(2) The applicant is to pay the respondents’ costs.
In matter number 2024/332024 (the appeal):
(1) Dismiss so much of the applicant’s amended motion filed on 2 December 2024 as seeks an extension of time.
(2) Appeal dismissed as incompetent.
(3) The appellant is to pay the respondents’ costs.

Catchwords:
APPEALS – leave to appeal – leave not readily granted to challenge to discretionary exercise of power with respect to costs – as regards alleged error in not making a set-off costs order, not in interests of justice to grant leave given decision substantially founded on facts before primary judge, the position has since evolved, and it remains open to applicant to claim any amounts outstanding – applicant’s complaint also involves challenge to orders made in favour of persons not party to appeal proceedings – no point of principle or public important or reasonably clear injustice going beyond something merely arguable

Legislation Cited:
Conveyancing Act 1919 (NSW), s 66G
Supreme Court Act 1970 (NSW), ss 101(2)(c), 101(2)(e)
Uniform Civil Procedure Rules 2005 (NSW), Pt 36, r 51.12(3)(a)

Cases Cited:
In the matter of Fewin Pty Ltd [2017] NSWSC 1093
John Anthony Arena Pty Ltd v Franpina Developments Pty Ltd [2022] NSWCA 139
Mendoca v Tonna [2021] NSWSC 1627
Mendonca v Tonna [2020] NSWCA 196
Mendonca v Tonna [2024] NSWCA 288
Mohareb v Local Court of New South Wales [2024] NSWCA 235
Tonna v Mendonca (No 2) [2020] NSWSC 306
Tonna v Mendonca [2019] NSWSC 1849

Category: Principal judgment
Parties: Renuka Mendonca (Applicant; self-represented)
Mark Tonna (First respondent)
Lorraine Tonna (Second respondent)
Representation:
Counsel:
D Stewart / D Emmerig (Respondents)
Solicitors:
BlackBay Lawyers (Respondents)

File Number(s): 2025/039861; 2024/332024
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity

Citation:

[2024] NSWSC 1024

Date of Decision:

15 August 2024

Before:

Kunc J

File Number(s):

2021/115917; 2022/264829; 2022/7598

JUDGMENT

THE COURT: The applicant, Dr Renuka Mendonca, and the current respondents, Mr Mark Tonna and Ms Lorraine Tonna, have been engaged in a long-running dispute about a property in Galston in the Hills District of Sydney. The last set of iterations of that dispute were case managed and determined by Kunc J in the Supreme Court, leading up to a long judgment on various costs disputes handed down on 15 August 2024: Mendonca v Tonna; Mendonca v Hathaway; The application of Hathaway and Hosking [2024] NSWSC 1024 (Costs Judgment). The decisions reached in that judgment were crystallised in orders made on 3 September 2024.
The applicant seeks leave to appeal from part of the orders made as a result of the Costs Judgment, along with various earlier…

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 Mendonca v Tonna

Details

AGLC: Mendonca v Tonna [2025] NSWCA 82
Case: [2025] NSWCA 82
Decision Date: 29 April 2025

CaseChat Overview and Summary

The applicant, Mendonca, sought leave to appeal and appealed against orders made by a primary judge concerning costs. The respondents were Tonna and others. The dispute centred on the primary judge's refusal to make a set-off costs order and other costs orders made in favour of individuals who were not parties to the appeal.

The court was required to determine whether to grant leave to appeal against the primary judge's discretionary costs orders. Specifically, the court considered whether there was a point of principle, public importance, or a reasonably clear injustice that warranted granting leave, particularly in relation to the alleged error in not making a set-off costs order. The court also had to consider the competence of the appeal itself, given that it involved challenges to orders made in favour of non-parties.

Kirk JA and Price AJA held that leave to appeal is not readily granted when challenging a discretionary exercise of power regarding costs. They reasoned that the primary judge's decision was substantially founded on facts before that judge, and the situation had since evolved. Furthermore, it remained open to the applicant to pursue any outstanding amounts separately. The court also noted that the applicant's complaint involved challenging orders made in favour of persons not party to the appeal proceedings, and found no point of principle, public importance, or reasonably clear injustice that went beyond something merely arguable. Consequently, the application for leave to appeal was dismissed, and the appeal was dismissed as incompetent.

In matter number 2025/039861, the application for leave to appeal was dismissed, and the applicant was ordered to pay the respondents’ costs. In matter number 2024/332024, so much of the applicant’s amended motion as sought an extension of time was dismissed, the appeal was dismissed as incompetent, and the appellant was ordered to pay the respondents’ costs.

Orders

Orders of the court

In matter number 2025/039861 (the application for leave to appeal):

(1) Application for leave to appeal dismissed.

(2) The applicant is to pay the respondents’ costs.

In matter number 2024/332024 (the appeal):

(1) Dismiss so much of the applicant’s amended motion filed on 2 December 2024 as seeks an extension of time.

(2) Appeal dismissed as incompetent.

(3) The appellant is to pay the respondents’ costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Mendonca v Tonna [2025] NSWCA 82
Hearing dates:	22 April 2025
Date of orders:	29 April 2025
Decision date:	29 April 2025
Before:	Kirk JA; Price AJA at [1]
Decision:	In matter number 2025/039861 (the application for leave to appeal): (1) Application for leave to appeal dismissed. (2) The applicant is to pay the respondents’ costs. In matter number 2024/332024 (the appeal): (1) Dismiss so much of the applicant’s amended motion filed on 2 December 2024 as seeks an extension of time. (2) Appeal dismissed as incompetent. (3) The appellant is to pay the respondents’ costs.
Catchwords:	APPEALS – leave to appeal – leave not readily granted to challenge to discretionary exercise of power with respect to costs – as regards alleged error in not making a set-off costs order, not in interests of justice to grant leave given decision substantially founded on facts before primary judge, the position has since evolved, and it remains open to applicant to claim any amounts outstanding – applicant’s complaint also involves challenge to orders made in favour of persons not party to appeal proceedings – no point of principle or public important or reasonably clear injustice going beyond something merely arguable
Legislation Cited:	Conveyancing Act 1919 (NSW), s 66G Supreme Court Act 1970 (NSW), ss 101(2)(c), 101(2)(e) Uniform Civil Procedure Rules 2005 (NSW), Pt 36, r 51.12(3)(a)
Cases Cited:	In the matter of Fewin Pty Ltd [2017] NSWSC 1093 John Anthony Arena Pty Ltd v Franpina Developments Pty Ltd [2022] NSWCA 139 Mendoca v Tonna [2021] NSWSC 1627 Mendonca v Tonna [2020] NSWCA 196 Mendonca v Tonna [2024] NSWCA 288 Mohareb v Local Court of New South Wales [2024] NSWCA 235 Tonna v Mendonca (No 2) [2020] NSWSC 306 Tonna v Mendonca [2019] NSWSC 1849
Category:	Principal judgment
Parties:	Renuka Mendonca (Applicant; self-represented) Mark Tonna (First respondent) Lorraine Tonna (Second respondent)
Representation:	Counsel: D Stewart / D Emmerig (Respondents) Solicitors: BlackBay Lawyers (Respondents)
File Number(s):	2025/039861; 2024/332024
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Citation: [2024] NSWSC 1024 Date of Decision: 15 August 2024 Before: Kunc J File Number(s): 2021/115917; 2022/264829; 2022/7598