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Priolo v Nguyen [No 2]

Priolo v Nguyen [No 2]

Case [2023] WASC 219 20 June 2023

Jurisdiction

Standing

Costs

Discovery & Disclosure

Limitation Periods

Abuse of Process

Res Judicata

Civil Litigation & Procedure

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   PRIOLO -v- NGUYEN [No 2] [2023] WASC 219
CORAM:   VANDONGEN J
HEARD:   11 MAY 2023
DELIVERED          :   20 JUNE 2023
FILE NO/S:   CIV 1453 of 2021
BETWEEN:   ANTHONY PRIOLO
MARIA ROSALIE PRIOLO
First Plaintiffs
AND
KHANH HOANG NGUYEN
First Defendant
NONNII CONSTRUCTION PTY LTD
Second Defendant
CIVCON CIVIL & PROJECT MANAGEMENT PTY LTD
Third Defendant

Catchwords:

Practice and procedure - Costs - Application for costs thrown away - Turns on own facts

Legislation:

District Court Rules 2005 (WA)
Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2022 (WA)
Rules of the Supreme Court 1971 (WA)
Supreme Court Act 1935 (WA)

Result:

Leave to appeal granted
Appeal allowed

Category: B

Representation:

Counsel:

First Plaintiffs	:	M Pullen
First Defendant	:	N W Kalmund
Second Defendant	:	N W Kalmund
Third Defendant	:	N W Kalmund

Solicitors:

First Plaintiffs	:	Bennett
First Defendant	:	Hotchkin Hanly
Second Defendant	:	Hotchkin Hanly
Third Defendant	:	Hotchkin Hanly

Case(s) referred to in decision(s):

Ashwin v Minara Resources Ltd [No 2] [2010] WASC 330
Brookvista Pty Ltd v Meloni [2009] WASCA 180
CVW Group Holdings Pty Ltd v Addison [2011] WASC 267
Edgen Murray Pte Ltd v Clough Projects International Pty Ltd [2009] WASC 402
Hampton Transport Services Pty Ltd v Crushing Services International Pty Ltd [2018] WASC 54
Naidoo v Williamson [2008] WASCA 179; (2008) 37 WAR 516
Ogbonna v Programmed Integrated Workforce Ltd [No 2] [2022] WASCA 79
Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589
Priolo v Nguyen [2022] WASC 290
Priority Networking Pty Ltd v Peterson [2018] WASC 36
Saraceni v Mentha [No 2] [2021] WASC 192 (S)
Scaffidi v Montevento Holdings Pty Ltd [2011] WASCA 146 (S)
Simmons v Love [No 2] [2016] WASC 167
Strahan v Brennan [2014] WASC 190
Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507

VANDONGEN J:

Introduction

The defendants have appealed against a decision that was made by a registrar of this court. The registrar refused the defendants' application for an order that the plaintiffs pay their costs that were thrown away by reason of amendments that were made to the statement of claim that was filed in this matter on 8 July 2022. The appeal was brought pursuant to O 60A r 4 of the Rules of the Supreme Court 1971 (WA) (Rules).
The essential issue raised by the appeal is whether, after conducting a 'new hearing of the matter that was before the registrar', as required by O 60A r 6 of the Rules, this court should make the order that was originally sought by the defendants.

Procedural history

The plaintiffs are the owners of a home in Dalkeith. The first and second defendants own an adjoining property. The first defendant is a registered builder and through the third and fourth defendants he undertook construction works on his property. In May 2021 the plaintiffs commenced…

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 Priolo v Nguyen [No 2]

Details

AGLC: Priolo v Nguyen [No 2] [2023] WASC 219
Case: [2023] WASC 219
Decision Date

CaseChat Overview and Summary

In Priolo v Nguyen [No 2], Vandongen J considered an appeal against a decision by a registrar of the Supreme Court of Western Australia that refused an application for an order that the plaintiffs pay the defendants' costs thrown away by reason of amendments made to the plaintiffs' statement of claim. The appeal was brought pursuant to O 60A r 4 of the Rules of the Supreme Court 1971 (WA). The essential issue raised by the appeal was whether, after conducting a 'new hearing of the matter that was before the registrar', as required by O 60A r 6 of the Rules, this court should make the order that was originally sought by the defendants. The court admitted additional evidence on the appeal, including a draft of the amended statement of claim that was provided to the defendants, and evidence of the costs that the defendants say were thrown away by reason of the amendments made to the statement of claim. The court found that the defendants had demonstrated that costs had been reasonably incurred and related to work done which had been wasted as a result of the amendments made to the statement of claim. However, because the plaintiffs had not yet re-pleaded, the court was not prepared to make an order that the defendants' costs thrown away be fixed in the amount claimed by the defendants, or at all. It was appropriate that those costs should be taxed, and that this should occur after the plaintiffs had filed a statement of claim. The court allowed the defendants' appeal, and set aside the order made by the registrar on 2 March 2023 refusing the defendants' application for costs thrown away. It also made an order that the plaintiffs pay the defendants' costs thrown away by reason of the amendments made to the plaintiffs' statement of claim dated 8 July 2022 by the filing of the substituted statement of claim dated 2 December 2022, further or alternatively, the amended statement of claim dated 18 January 2023, to be taxed if not agreed.

Orders