Provident Capital Ltd v Papa (No 2) - [2013] NSWCA 156

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Provident Capital Ltd v Papa (No 2) [2013] NSWCA 156
Hearing dates: 8 May 2013
Decision date: 06 June 2013
Before: Macfarlan JA at [1]
Sackville AJA at [35]
Decision:
(1) Dismiss with costs Mr Caramanlis' Notice of Motion filed on 14 March 2013.
(2) In lieu of order 5 made on 28 February 2013, order Mrs Papa to pay Provident Capital's costs, assessed on a solicitor and client basis, of its proceedings against her at first instance (including Mrs Papa's cross-claim against Provident Capital) and its appeal.
(3) In lieu of order 11 made on 28 February 2013, order that Mr Caramanlis pay to Mrs Papa:
(i) Her costs at first instance of Provident Capital's claim against her (including Mrs Papa's cross-claim against Provident Capital) and her claim against Mr Caramanlis;
(ii) Her costs of Provident Capital's appeal against the judgment in her favour;
(iii) Her costs of her appeal against the judgment in favour of Mr Caramanlis.
(4) If Mrs Papa and Mr Caramanlis are able to agree as to the amount of the damages to be awarded against Mr Caramanlis, direct those parties to file a form of consent order with the Court within seven days of the date of this judgment.
(5) If those parties are unable to so agree, direct that Mrs Papa cause her appeal to be listed before the Registrar of the Court of Appeal for the purpose of directions being made as to the filing of evidence of relevant costs and expenses incurred by Provident Capital after 4 July 2010 and the determination of the amount of the damages that should be awarded against Mr Caramanlis.
(6) Order Mr Caramanlis to pay the costs of Provident Capital and Mrs Papa of Provident Capital's Notice of Motion filed on 11 March 2013.
[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:
BANKING AND FINANCE - financier proceeding for possession of mortgaged property not precluded from later claiming mortgage debt - whether costs of proceedings recoverable under security documents

CONTRACT - contract for lawyer to provide independent advice on security documents - whether client's costs of proceedings involving financier recoverable from lawyer as damages for breach of contract - whether damages entitlement could be reflected in costs order
APPEAL - client challenged judgment at first instance for lawyer on professional negligence claim - lawyer resisted appeal but did not raise on appeal alternative defences of contributory negligence and apportionment - whether lawyer should have filed notice of cross-appeal or contention - principle of finality - s 56-58 Civil Procedure Act - lawyer precluded…

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 156
Decision Date: 06 June 2013

CaseChat Overview and Summary

In Provident Capital Ltd v Papa (No 2), the New South Wales Court of Appeal considered a dispute arising from a mortgage and a related professional negligence claim. The primary parties were Provident Capital Ltd (the financier), Mrs Papa (the mortgagor), and Mr Caramanlis (Mrs Papa's solicitor). The core of the dispute involved Provident Capital's claim for possession of mortgaged property and recovery of the mortgage debt, and Mrs Papa's cross-claim against Mr Caramanlis for alleged professional negligence in advising her on the security documents.

The Court of Appeal was required to determine several key legal issues. Firstly, it considered whether a financier, having obtained possession of mortgaged property, was precluded from subsequently claiming the mortgage debt, and whether the costs of such possession proceedings were recoverable under the security documents. Secondly, the Court addressed whether Mrs Papa's costs incurred in proceedings involving the financier were recoverable from Mr Caramanlis as damages for breach of his contractual duty to provide independent advice on the security documents. Finally, the Court examined whether Mr Caramanlis, having lost at first instance on the professional negligence claim, could raise defences of contributory negligence and apportionment on appeal without filing a notice of cross-appeal or contention, and whether the principle of finality and provisions of the Civil Procedure Act precluded him from doing so after the appeal decision.

The Court of Appeal reasoned that a financier is not precluded from pursuing both possession and the mortgage debt, and that costs incurred in possession proceedings are generally recoverable under the security documents. Regarding the professional negligence claim, the Court held that Mrs Papa's costs of the proceedings against the financier could be reflected in damages awarded against Mr Caramanlis if his breach of duty caused those costs. Crucially, the Court applied the principle of finality and the relevant provisions of the Civil Procedure Act to find that Mr Caramanlis was precluded from raising defences of contributory negligence and apportionment on appeal, as he had not filed a notice of cross-appeal or contention.

The Court of Appeal dismissed Mr Caramanlis's Notice of Motion and ordered that Mrs Papa pay Provident Capital's costs of the first instance proceedings and appeal on a solicitor and client basis. It also ordered that Mr Caramanlis pay Mrs Papa's costs of the first instance proceedings and her appeals. The Court further directed that if Mrs Papa and Mr Caramanlis could not agree on the amount of damages to be awarded against Mr Caramanlis, the matter would be listed before the Registrar for directions regarding the determination of those damages. Mr Caramanlis was also ordered to pay the costs of Provident Capital and Mrs Papa concerning Provident Capital's Notice of Motion.

Orders

Orders of the court

(1) Dismiss with costs Mr Caramanlis' Notice of Motion filed on 14 March 2013.

(2) In lieu of order 5 made on 28 February 2013, order Mrs Papa to pay Provident Capital's costs, assessed on a solicitor and client basis, of its proceedings against her at first instance (including Mrs Papa's cross-claim against Provident Capital) and its appeal.

(3) In lieu of order 11 made on 28 February 2013, order that Mr Caramanlis pay to Mrs Papa:

(i) Her costs at first instance of Provident Capital's claim against her (including Mrs Papa's cross-claim against Provident Capital) and her claim against Mr Caramanlis;

(ii) Her costs of Provident Capital's appeal against the judgment in her favour;

(iii) Her costs of her appeal against the judgment in favour of Mr Caramanlis.

(4) If Mrs Papa and Mr Caramanlis are able to agree as to the amount of the damages to be awarded against Mr Caramanlis, direct those parties to file a form of consent order with the Court within seven days of the date of this judgment.

(5) If those parties are unable to so agree, direct that Mrs Papa cause her appeal to be listed before the Registrar of the Court of Appeal for the purpose of directions being made as to the filing of evidence of relevant costs and expenses incurred by Provident Capital after 4 July 2010 and the determination of the amount of the damages that should be awarded against Mr Caramanlis.

(6) Order Mr Caramanlis to pay the costs of Provident Capital and Mrs Papa of Provident Capital's Notice of Motion filed on 11 March 2013.

[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

Full text does not contain this section.

Medium Neutral Citation:	Provident Capital Ltd v Papa (No 2) [2013] NSWCA 156
Hearing dates:	8 May 2013
Decision date:	06 June 2013
Before:	Macfarlan JA at [1] Sackville AJA at [35]
Decision:	(1) Dismiss with costs Mr Caramanlis' Notice of Motion filed on 14 March 2013. (2) In lieu of order 5 made on 28 February 2013, order Mrs Papa to pay Provident Capital's costs, assessed on a solicitor and client basis, of its proceedings against her at first instance (including Mrs Papa's cross-claim against Provident Capital) and its appeal. (3) In lieu of order 11 made on 28 February 2013, order that Mr Caramanlis pay to Mrs Papa: (i) Her costs at first instance of Provident Capital's claim against her (including Mrs Papa's cross-claim against Provident Capital) and her claim against Mr Caramanlis; (ii) Her costs of Provident Capital's appeal against the judgment in her favour; (iii) Her costs of her appeal against the judgment in favour of Mr Caramanlis. (4) If Mrs Papa and Mr Caramanlis are able to agree as to the amount of the damages to be awarded against Mr Caramanlis, direct those parties to file a form of consent order with the Court within seven days of the date of this judgment. (5) If those parties are unable to so agree, direct that Mrs Papa cause her appeal to be listed before the Registrar of the Court of Appeal for the purpose of directions being made as to the filing of evidence of relevant costs and expenses incurred by Provident Capital after 4 July 2010 and the determination of the amount of the damages that should be awarded against Mr Caramanlis. (6) Order Mr Caramanlis to pay the costs of Provident Capital and Mrs Papa of Provident Capital's Notice of Motion filed on 11 March 2013. [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:	BANKING AND FINANCE - financier proceeding for possession of mortgaged property not precluded from later claiming mortgage debt - whether costs of proceedings recoverable under security documents CONTRACT - contract for lawyer to provide independent advice on security documents - whether client's costs of proceedings involving financier recoverable from lawyer as damages for breach of contract - whether damages entitlement could be reflected in costs order APPEAL - client challenged judgment at first instance for lawyer on professional negligence claim - lawyer resisted appeal but did not raise on appeal alternative defences of contributory negligence and apportionment - whether lawyer should have filed notice of cross-appeal or contention - principle of finality - s 56-58 Civil Procedure Act - lawyer precluded…