Mendonca v Tonna - [2024] NSWCA 288

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Mendonca v Tonna [2024] NSWCA 288
Hearing dates: 2 December 2024
Date of orders: 2 December 2024
Decision date: 02 December 2024
Before: Basten AJA
Decision:
(1)   Dismiss the appellant’s notice of motion filed on 15 November 2024 seeking a costs capping order.
(2)   Stand over to the hearing of the appeal so much of the amended notice of motion filed on 2 December 2024 as seeks an extension of time to appeal interlocutory orders.
(3)   Order that the appellant pay the respondent’s costs of the motion filed on 15 November 2024.

Catchwords:
CIVIL PROCEDURE – appeal – application for costs capping order – need to show reason to anticipate disruptive or obstructive conduct by other party – insufficient to seek to protection from reasonable costs of other party to unsuccessful appeal
CIVIL PROCEDURE – appeal – requirements for leave – challenge to interlocutory orders and costs orders – challenge to orders in working out of final judgment interlocutory

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 56
Conveyancing Act 1919 (NSW), s 66G
Supreme Court Act 1970 (NSW), s 101
Uniform Civil Procedure Rules 2005 (NSW), rr 42.4, 51.1, 51.18

Cases Cited:
Antov v Bokan [2019] NSWCA 40
Derrawee Pastoral Company Pty Ltd v McConochie [1995] NSWCA 123
Kara Kar Holdings Pty Ltd v Brookton Holdings [1997] NSWCA 171
Sherborne Estate (No 2): Vanvalen v Neaves (2005) 65 NSWLR 268; [2005] NSWSC 1003

Category: Procedural rulings
Parties: Renuka Maria Mendonca (Appellant) (unrepresented)
Mark Julian Tonna (First Respondent)
Lorraine Mary Tonna (Second Respondent)
Representation:
Counsel:
D Stewart / D Emmerig (First and Second Respondents)
Solicitors:
BlackBay Lawyers (First and Second Respondents)

File Number(s): 2024/332024
Decision under appeal

Court or tribunal:

Supreme Court 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

BASTEN AJA: On 15 November 2024, the appellant, Dr Renuka Mendonca, filed a notice of appeal with respect to a judgment delivered by Kunc J in the Equity Division on 15 August 2024. A timely notice of intention to appeal having been filed, the notice of appeal was within time. The appeal seeks to challenge orders made on 24 October 2023 and 2, 3, 5 and 10 April 2024, as well as orders made on 3 September 2024. In fact, Kunc J did not make orders on 15 August 2024, beyond directions for the parties to bring in short minutes to give effect to the reasons published on that date.
Accordingly, the appeal covers both interlocutory orders and the final orders made on 3 September 2024. Contrary to the appellant’s understanding, reflected in her amended motion seeking an extension of time to challenge those orders, no leave is required to challenge interlocutory orders in circumstances where the interlocutory orders have material consequences for the final orders. (If they do not materially affect the final orders, leave will usually be refused, but…

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 [2024] NSWCA 288
Case: [2024] NSWCA 288
Decision Date: 02 December 2024

CaseChat Overview and Summary

In *Mendonca v Tonna*, the appellant sought a costs capping order in relation to an appeal. The respondent sought to have the appeal dismissed. The matter came before Basten AJA.

The primary legal issue before the court was whether the appellant had demonstrated sufficient grounds to justify the making of a costs capping order. This involved considering the threshold for such an order, particularly the need to show a reason to anticipate disruptive or obstructive conduct by the other party, as opposed to merely seeking protection from the reasonable costs of an unsuccessful appeal. A secondary issue concerned the appellant's application for an extension of time to appeal certain interlocutory orders made in the working out of a final judgment.

Basten AJA dismissed the appellant's application for a costs capping order, finding that the appellant had not established the necessary grounds to anticipate disruptive or obstructive conduct by the respondent. The court reasoned that the purpose of a costs capping order is to protect a party from unreasonable costs arising from such conduct, and that the appellant's concerns did not meet this threshold. The court also noted that challenges to orders made in the working out of a final judgment are generally considered interlocutory.

The court ordered that the appellant's notice of motion seeking a costs capping order be dismissed. So much of the appellant's amended notice of motion as sought an extension of time to appeal interlocutory orders was stood over to the hearing of the appeal. Finally, the appellant was ordered to pay the respondent's costs of the motion filed on 15 November 2024.

Orders

Orders of the court

(1) Dismiss the appellant’s notice of motion filed on 15 November 2024 seeking a costs capping order.

(2) Stand over to the hearing of the appeal so much of the amended notice of motion filed on 2 December 2024 as seeks an extension of time to appeal interlocutory orders.

(3) Order that the appellant pay the respondent’s costs of the motion filed on 15 November 2024.

Background

Background to the litigation

Full text does not contain this section.

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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Medium Neutral Citation:	Mendonca v Tonna [2024] NSWCA 288
Hearing dates:	2 December 2024
Date of orders:	2 December 2024
Decision date:	02 December 2024
Before:	Basten AJA
Decision:	(1) Dismiss the appellant’s notice of motion filed on 15 November 2024 seeking a costs capping order. (2) Stand over to the hearing of the appeal so much of the amended notice of motion filed on 2 December 2024 as seeks an extension of time to appeal interlocutory orders. (3) Order that the appellant pay the respondent’s costs of the motion filed on 15 November 2024.
Catchwords:	CIVIL PROCEDURE – appeal – application for costs capping order – need to show reason to anticipate disruptive or obstructive conduct by other party – insufficient to seek to protection from reasonable costs of other party to unsuccessful appeal CIVIL PROCEDURE – appeal – requirements for leave – challenge to interlocutory orders and costs orders – challenge to orders in working out of final judgment interlocutory
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 56 Conveyancing Act 1919 (NSW), s 66G Supreme Court Act 1970 (NSW), s 101 Uniform Civil Procedure Rules 2005 (NSW), rr 42.4, 51.1, 51.18
Cases Cited:	Antov v Bokan [2019] NSWCA 40 Derrawee Pastoral Company Pty Ltd v McConochie [1995] NSWCA 123 Kara Kar Holdings Pty Ltd v Brookton Holdings [1997] NSWCA 171 Sherborne Estate (No 2): Vanvalen v Neaves (2005) 65 NSWLR 268; [2005] NSWSC 1003
Category:	Procedural rulings
Parties:	Renuka Maria Mendonca (Appellant) (unrepresented) Mark Julian Tonna (First Respondent) Lorraine Mary Tonna (Second Respondent)
Representation:	Counsel: D Stewart / D Emmerig (First and Second Respondents) Solicitors: BlackBay Lawyers (First and Second Respondents)
File Number(s):	2024/332024
Decision under appeal	Court or tribunal: Supreme Court 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