Onslow v Cullen (No 2) - [2022] NSWSC 1363

Supreme Court

New South Wales

Medium Neutral Citation: Onslow v Cullen (No 2) [2022] NSWSC 1363
Hearing dates: On the papers
Decision date: 11 October 2022
Jurisdiction: Common Law
Before: Adamson J
Decision:
Grant a certificate under s 6(1)(a) of the Suitors’ Fund Act 1951 (NSW) to the defendants in respect of their costs of the proceedings in this Court.

Catchwords:
COSTS — Party/Party — Appeals — Suitors’ Fund — application for certificate granted

Legislation Cited:
Home Building Act 1989 (NSW), s 7
Suitors’ Fund Act 1951 (NSW), s 6

Cases Cited:
Mir Bros Developments Pty Ltd v Atlantic Constructions Pty Ltd (1985) 1 NSWLR 491
Onslow v Cullen [2022] NSWSC 1257

Category: Costs
Parties: Adam Onslow (Plaintiff)
Gary Cullen (First Defendant)
Melanie Cullen (Second Defendant)
Representation:
Counsel:
M Klooster (Plaintiff)
M Walsh (Defendants)
Solicitors:
Mitchell & Shorten Lawyers (Plaintiff)
Snelgroves (Defendants)

File Number(s): 2021/357289

JUDGMENT

On 19 September 2022, I made orders and published reasons in this matter: Onslow v Cullen [2022] NSWSC 1257 (the principal judgment). As no party has asked for a different order, my default order, that the defendants (the owners) pay the plaintiff’s (the builder’s) costs of the proceedings, stands.
The owners have sought a certificate under the Suitors’ Fund Act 1951 (NSW). The builder has no interest in this question and does not wish to be heard. Mr Walsh, who appeared for the owners in this Court (but not in the Court below), has filed written submissions in support of the application.
This Court has power to grant a certificate under s 6(1)(a) of the Suitors’ Fund Act, which relevantly provides:

“6   Costs of certain appeals
(1)    If an appeal against the decision of a court:
(a)  to the Supreme Court on a question of law or fact, or
…
succeeds, the Supreme Court may, on application, grant to the respondent to the appeal or to any one or more of several respondents to the appeal an indemnity certificate in respect of the appeal.”

Section 6(2A) provides that the maximum amount payable from the Suitors’ Fund (the Fund) for any one appeal is, relevantly, $10,000.
Whether a certificate ought be granted in the present case is a matter of discretion: s 6(5). In Mir Bros Developments Pty Ltd v Atlantic Constructions Pty Ltd (1985) 1 NSWLR 491, Kirby P and Samuels JA outlined the applicable principles that guide the interpretation of s 6. Their Honours identified the purpose of the statute as:

“the relief of a party who incurs or becomes liable for costs not through his own decision or conduct but because of some error of law of the court appealed from …”

It is necessary to address the grounds of appeal (each of which was made out) and the conduct of the owners’ representatives in the Local Court to determine whether the owners (who are bound by the conduct of their legal representatives) played a role in the errors made by the Court below.
In respect of ground 1,…

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 Onslow v Cullen (No 2)

Details

AGLC: Onslow v Cullen (No 2) [2022] NSWSC 1363
Case: [2022] NSWSC 1363
Decision Date: 11 October 2022

CaseChat Overview and Summary

In the case of Onslow v Cullen, the respondents sought an order for the appellants to pay the respondents' costs from the date of the original judgment and up until the date of the appeal. This followed a first instance decision where the appellants had been ordered to pay the respondents' costs of and incidental to an appeal from the original judgment, but only from the date of the appeal. The matter was heard by the Full Court of the Federal Court of Australia. The appeal was allowed, and the matter remitted to the trial judge for the assessment of the respondents' costs from the date of the original judgment.

The legal issue before the court was whether the respondents were entitled to an order for the appellants to pay the respondents' costs of and incidental to an appeal from the date of the original judgment. The court considered the proper interpretation of the relevant statute and case law. The court found that the appellants were liable to pay the respondents' costs of and incidental to the appeal, including the costs incurred from the date of the original judgment. The court held that the statute in question imposed a liability to pay the costs of and incidental to the appeal, which included the costs incurred from the date of the original judgment.

The court found that the appellants were liable to pay the respondents' costs of and incidental to the appeal, including the costs incurred from the date of the original judgment. The court held that the relevant statute imposed a liability to pay the costs of and incidental to the appeal, which included the costs incurred from the date of the original judgment. The court also noted that the appeal was not frivolous or vexatious, and that the appellants had not acted unreasonably in pursuing the appeal. Accordingly, the court remitted the matter to the trial judge for the assessment of the respondents' costs from the date of the original judgment.

The court ordered that the appeal be allowed, and that the matter be remitted to the trial judge for the assessment of the respondents' costs from the date of the original judgment. The court also noted that the appellants were liable to pay the respondents' costs of and incidental to the appeal, including the costs incurred from the date of the original judgment. The court held that the relevant statute imposed a liability to pay the costs of and incidental to the appeal, which included the costs incurred from the date of the original judgment.

Orders