Precision Flooring Pty Ltd v Armstrong [2022] NSWSC 1006
Hearing dates:
On the papers
Date of orders:
16 August 2022
Decision date:
16 August 2022
Jurisdiction:
Common Law
Before:
Walton J
Decision:
The plaintiff should bring in Short Minutes of Order reflecting this decision within 3 days of publication of the judgment.
Catchwords:
COSTS – appeal – Civil Procedure Act 2005 (NSW) s 98 – Uniform Civil Procedure Rules 2005 (NSW) r 42.1 – discretion as to costs – costs should follow the event – order as to costs of appeal – costs of Local Court proceedings
Counsel: D Feller SC (Plaintiff) E Peden SC with T Bateman (Defendant)
Solicitors: Vincent Young (Plaintiff) McLean & Associates (Defendant)
File Number(s):
2019/365342
Judgment
By a summons filed on 20 November 2019, which was subsequently amended by leave of the Court on 2 July 2020 (“the amended summons”), Precision Flooring Pty Ltd (“the plaintiff”) appealed from, and to the extent necessary sought leave to appeal from, the judgment and orders delivered and made by Baptie LCM on 25 October 2019 (“the appeal”), by which her Honour awarded Ms Sandra Armstrong (“the defendant”) damages of $63,570: Precision Flooring Pty Ltdv Armstrong (Unreported, Local Court of New South Wales, Baptie LCM, 25 October 2019) (“Precision Flooring No 1”).
The proceedings in the Local Court of New South Wales were commenced by the plaintiff. By an amended statement of claim filed on 1 April 2019, the plaintiff claimed the sum of $23,202.90 for breach of an agreement between the plaintiff and the defendant whereby the plaintiff would supply and install various timber products and install timber stairs at the defendant’s property at Roseville.
The plaintiff claimed that the defendant’s conduct in failing to pay progress payments, as and when they fell due, was a repudiation of the agreement between the parties, which had resulted in loss and damage for the plaintiff.
The defendant filed an amended statement of cross-claim on 22 December 2018 in which it was pleaded, inter alia, that the plaintiff (the cross-defendant on the cross-claim) was in breach of the Competition and Consumer Act 2010 (Cth) (“the Consumer Act”) and the Australian Consumer Law (“the ACL”) as the plaintiff had failed to supply goods, under the agreement between the plaintiff and the defendant, that:
were of…
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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AGLC
Precision Flooring Pty Ltd v Armstrong [2022] NSWSC 1006
Case
[2022] NSWSC 1006
Decision Date
CaseChat Overview and Summary
Precision Flooring Pty Ltd sought to appeal against an order made by Armstrong in the Local Court of New South Wales. The dispute involved a claim for unpaid services rendered by Precision Flooring to Armstrong. The appeal was heard in the Supreme Court of New South Wales. The legal issues before the court were whether Precision Flooring was entitled to costs under section 98 of the Civil Procedure Act 2005 (NSW) and whether the order regarding costs in the Local Court proceedings was appropriate.
The court considered the provisions of section 98 of the Civil Procedure Act, which allows the court to order costs to follow the event. It also examined the relevant rules under the Uniform Civil Procedure Rules 2005 (NSW) r 42.1. The court held that Precision Flooring was entitled to costs for the appeal as the party that successfully demonstrated the Local Court's decision was flawed. The court found that Armstrong's defence was not well-founded and that the appeal was successful on the merits. Therefore, Precision Flooring was entitled to an order for costs of the appeal. Regarding the costs of the Local Court proceedings, the court held that the order made in the Local Court was fair and reasonable, given the circumstances of the case.
The court made an order that Precision Flooring was to be awarded costs of the appeal, and that the order regarding the costs of the Local Court proceedings was to stand as made. The court further ordered that Armstrong was to pay Precision Flooring's costs of the appeal on the standard basis.