Nutectime International Pty Ltd v Timentel Pty Ltd - [2013] NSWCA 254

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Nutectime International Pty Ltd v Timentel Pty Ltd [2013] NSWCA 254
Hearing dates: On the papers
Decision date: 09 August 2013
Before: Emmett JA; Gleeson JA; Tobias AJA
Decision:
The Court orders that:
1. Pursuant to UCPR rule 36.17 and the Court's inherent jurisdiction, Order 1 made on 5 September 2011 be varied to include the words "... against the 1st to 3rd respondents" after the words "with costs".
2. Pursuant to UCPR rule 51.45 and s 75A(10) of the Supreme Court Act 1970, the appellants pay to the fourth respondent, Francis Joseph Frasca, the sum of $19,968.24 together with interest pursuant to s 101 of the Civil Procedure Act 2005, calculated from 25 September 2012 until the day of payment.
3. The appellants and the second and third respondents to the appeal jointly and severally pay Mr Frasca's costs of the motion filed on 27 November 2012.
4. The Registrar of the Court of Appeal be directed to refer the terms of the final paragraph of these reasons to the Law Society of New South Wales.
[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: PROCEDURE - civil - judgments and orders - motion to vary orders on appeal - where applicant on motion, who was fourth respondent on appeal, had filed submitting appearance on appeal - where appeal allowed with costs without excluding applicant on motion - where appellants sought to enforce costs order against applicant on motion
Legislation Cited: Civil Procedure Act 2005 s 101
Corporations Act 2001 (Cth) ss 232, 233
Supreme Court Act 1970 s 75A(10)
Category: Interlocutory applications
Parties: Nutectime International Pty Ltd (First appellant)
David Neilan Brady (Second appellant)
David Bruce Paix (Third appellant)
Timentel Pty Ltd (First respondent)
Patricia Mary Ehsman (Second respondent)
Michael David Ehsman (Third respondent)
Francis Joseph Frasca (Fourth respondent)
Representation:
Smith
Counsel:
No counsel appeared at directions hearings for the appellant.
H Durack (Second respondent)
SA Benson (Third respondent)
J McDonald (Fourth respondent)
Solicitors:
Mason Lawyers (Appellants)
McDonald Johnson (First and second respondents; third respondent until 21 June 2013)
John Hollier (Third respondent from 21 June 2013)
Patey & Murphy (Fourth respondent)

File Number(s): CA 2005/261666

Judgment

THE COURT: Mr Francis Frasca, who was the fourth respondent to an appeal to the Court of Appeal from orders made by a judge of the Equity Division, has applied by notice of motion filed on 23 November 2012 for an order that orders made by the Court of Appeal on 5 September 2011 and on 16 September 2011 be varied. He seeks the orders under the slip rule.…

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.

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Details

Case: [2013] NSWCA 254
Decision Date: 09 August 2013

CaseChat Overview and Summary

Nutectime International Pty Ltd and others (the appellants) sought to vary orders made on appeal, specifically concerning a costs order. The fourth respondent on the appeal, Francis Joseph Frasca, had filed a submitting appearance on the appeal. The appeal had been allowed with costs, but the original orders did not explicitly exclude Mr Frasca from liability for those costs. The appellants sought to enforce the costs order against him.

The primary legal issue before the Court of Appeal was whether the costs order made on the appeal should be varied to specify that it was made against the first to third respondents only, thereby excluding Mr Frasca from liability. A secondary issue arose concerning Mr Frasca's entitlement to costs of the motion he filed.

The Court determined that it had the power to vary its orders under UCPR rule 36.17 and its inherent jurisdiction. It reasoned that Mr Frasca's submitting appearance indicated he did not intend to contest the appeal and therefore should not be held liable for the costs awarded to the successful appellants. The Court also considered Mr Frasca's entitlement to his own costs of the motion, noting that the appellants and other respondents were ordered to pay those costs.

The Court ordered that the original costs order be varied to specify it was made against the first to third respondents. It further ordered that the appellants pay Mr Frasca a sum of $19,968.24 plus interest, and that the appellants and the second and third respondents jointly and severally pay Mr Frasca's costs of the motion. The Registrar was also directed to refer the terms of the final paragraph of the reasons to the Law Society of New South Wales.

Orders

Orders of the court

The Court orders that:

1. Pursuant to UCPR rule 36.17 and the Court's inherent jurisdiction, Order 1 made on 5 September 2011 be varied to include the words "... against the 1st to 3rd respondents" after the words "with costs".

2. Pursuant to UCPR rule 51.45 and s 75A(10) of the Supreme Court Act 1970, the appellants pay to the fourth respondent, Francis Joseph Frasca, the sum of $19,968.24 together with interest pursuant to s 101 of the Civil Procedure Act 2005, calculated from 25 September 2012 until the day of payment.

3. The appellants and the second and third respondents to the appeal jointly and severally pay Mr Frasca's costs of the motion filed on 27 November 2012.

4. The Registrar of the Court of Appeal be directed to refer the terms of the final paragraph of these reasons to the Law Society of New South Wales.

[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

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

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Medium Neutral Citation:	Nutectime International Pty Ltd v Timentel Pty Ltd [2013] NSWCA 254
Hearing dates:	On the papers
Decision date:	09 August 2013
Before:	Emmett JA; Gleeson JA; Tobias AJA
Decision:	The Court orders that: 1. Pursuant to UCPR rule 36.17 and the Court's inherent jurisdiction, Order 1 made on 5 September 2011 be varied to include the words "... against the 1st to 3rd respondents" after the words "with costs". 2. Pursuant to UCPR rule 51.45 and s 75A(10) of the Supreme Court Act 1970, the appellants pay to the fourth respondent, Francis Joseph Frasca, the sum of $19,968.24 together with interest pursuant to s 101 of the Civil Procedure Act 2005, calculated from 25 September 2012 until the day of payment. 3. The appellants and the second and third respondents to the appeal jointly and severally pay Mr Frasca's costs of the motion filed on 27 November 2012. 4. The Registrar of the Court of Appeal be directed to refer the terms of the final paragraph of these reasons to the Law Society of New South Wales. [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:	PROCEDURE - civil - judgments and orders - motion to vary orders on appeal - where applicant on motion, who was fourth respondent on appeal, had filed submitting appearance on appeal - where appeal allowed with costs without excluding applicant on motion - where appellants sought to enforce costs order against applicant on motion
Legislation Cited:	Civil Procedure Act 2005 s 101 Corporations Act 2001 (Cth) ss 232, 233 Supreme Court Act 1970 s 75A(10)
Category:	Interlocutory applications
Parties:	Nutectime International Pty Ltd (First appellant) David Neilan Brady (Second appellant) David Bruce Paix (Third appellant) Timentel Pty Ltd (First respondent) Patricia Mary Ehsman (Second respondent) Michael David Ehsman (Third respondent) Francis Joseph Frasca (Fourth respondent)
Representation:	Smith Counsel: No counsel appeared at directions hearings for the appellant. H Durack (Second respondent) SA Benson (Third respondent) J McDonald (Fourth respondent) Solicitors: Mason Lawyers (Appellants) McDonald Johnson (First and second respondents; third respondent until 21 June 2013) John Hollier (Third respondent from 21 June 2013) Patey & Murphy (Fourth respondent)
File Number(s):	CA 2005/261666