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Sydney City Council v Geftlick

Sydney City Council v Geftlick

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New South Wales

Court of Appeal

CITATION: Sydney City Council v Geftlick & Ors [2006] NSWCA 280
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 22 August 2006

JUDGMENT DATE:
18 October 2006

JUDGMENT OF: Mason P at 1; Hodgson JA at 2; Tobias JA at 3

DECISION: (a) Leave to appeal granted upon condition that the claimant file its Notice of Grounds of Appeal within seven days of the date of this order; (b) Appeal allowed; (c) Set aside the orders made by his Honour Judge Hughes on 12 October 2005; (d) The first, second and third cross-claims be dismissed and that the fourth cross-claim be remitted to the District Court for further hearing of any outstanding issues thereunder; (e) The first opponent to pay the costs of the claimant and the second opponent up to and including 6 November 2004 such costs to be assessed on the ordinary basis; (f) The claimant to pay the costs of the third opponent with respect to the second cross-claim, such costs to be assessed on the ordinary basis; (g) The claimant to pay the costs of the first and second opponents of the action as and from 7 November 2004, such costs to be assessed on the ordinary basis; (h) Each of the claimant and the second and third opponents to pay its own costs of the first and third cross-claims; (i) Each of the second and third opponent to pay its own costs to date of the fourth cross-claim; (j) The first, second and third opponents to pay the claimant’s costs of the summons for leave to appeal and the appeal but to have with respect to the latter a certificate under the Suitor’s Fund Act 1951, if otherwise qualified

CATCHWORDS: PROCEDURE – COSTS – costs appeal – multiple claims and cross-claims arising from substantive proceedings – principles – scope of primary judge’s discretion as to costs award – basis for order concerning indemnity costs – costs of appeal where represented by both senior and junior counsel

LEGISLATION CITED: Arbitration (Civil Actions) Act 1983, s 18
District Court Act 1973, s 63A
District Court Rules 1973, pt 39A r9
Law Reform (Miscellaneous Provisions) Act 1946, s 5(1)
Legal Profession Act 1987, ss 198D, 198G
Roads Act 1993, s 142
Uniform Civil Procedure Act 2005, s 98
Uniform Civil Procedure Rules 2005, r 42.1

CASES CITED: Anglo Cyprian Trade Agency Ltd v Paphos Wine Industries Ltd [1951] 1 All ER 873
Arian v Nguyen [2001] 33 MVR 37; NSWCA 5
Australian Coal & Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621
Boylan Nominees Pty Ltd v Williams Refrigeration Australia Pty Ltd [2006] NSWCA 100
Houatchanthara v Bednarczyk (Court of Appeal, 14 October 1996, unreported)
House v The King (1936) 55 CLR 499
Howard v Telstra Corporation Ltd [2003] NSWCA 188
Latoudis v Casey (1990) 170 CLR 543
LMI Australasia Pty Ltd v Baulderstone Hornibrook Pty Ltd [2003]…

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: [2006] NSWCA 280
Decision Date: 18 October 2006

CaseChat Overview and Summary

Sydney City Council (the claimant) appealed to the Court of Appeal of New South Wales against orders made by Judge Hughes in the District Court concerning multiple claims and cross-claims. The dispute involved a complex web of claims and counterclaims between the Council and various opponents.

The primary legal issues before the Court of Appeal were the scope of the primary judge's discretion in awarding costs, particularly in relation to indemnity costs, and the appropriate allocation of costs for the substantive proceedings and the appeal itself, given the involvement of both senior and junior counsel.

The Court of Appeal allowed the appeal, setting aside the orders of Judge Hughes. It found that the first, second, and third cross-claims should be dismissed. The fourth cross-claim was remitted to the District Court for further hearing. The Court then made detailed orders regarding the payment of costs between the parties on an ordinary basis, reflecting the success and failure of various claims and cross-claims, and also addressed the costs of the appeal, including a certificate under the Suitor's Fund Act 1951.

Orders

Orders of the court

(a) Leave to appeal granted upon condition that the claimant file its Notice of Grounds of Appeal within seven days of the date of this order; (b) Appeal allowed; (c) Set aside the orders made by his Honour Judge Hughes on 12 October 2005; (d) The first, second and third cross-claims be dismissed and that the fourth cross-claim be remitted to the District Court for further hearing of any outstanding issues thereunder; (e) The first opponent to pay the costs of the claimant and the second opponent up to and including 6 November 2004 such costs to be assessed on the ordinary basis; (f) The claimant to pay the costs of the third opponent with respect to the second cross-claim, such costs to be assessed on the ordinary basis; (g) The claimant to pay the costs of the first and second opponents of the action as and from 7 November 2004, such costs to be assessed on the ordinary basis; (h) Each of the claimant and the second and third opponents to pay its own costs of the first and third cross-claims; (i) Each of the second and third opponent to pay its own costs to date of the fourth cross-claim; (j) The first, second and third opponents to pay the claimant's costs of the summons for leave to appeal and the appeal but to have with respect to the latter a certificate under the Suitor's Fund Act 1951, if otherwise qualified

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

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Sydney City Council v Geftlick & Ors [2006] NSWCA 280 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	22 August 2006
JUDGMENT DATE:	18 October 2006
JUDGMENT OF:	Mason P at 1; Hodgson JA at 2; Tobias JA at 3
DECISION:	(a) Leave to appeal granted upon condition that the claimant file its Notice of Grounds of Appeal within seven days of the date of this order; (b) Appeal allowed; (c) Set aside the orders made by his Honour Judge Hughes on 12 October 2005; (d) The first, second and third cross-claims be dismissed and that the fourth cross-claim be remitted to the District Court for further hearing of any outstanding issues thereunder; (e) The first opponent to pay the costs of the claimant and the second opponent up to and including 6 November 2004 such costs to be assessed on the ordinary basis; (f) The claimant to pay the costs of the third opponent with respect to the second cross-claim, such costs to be assessed on the ordinary basis; (g) The claimant to pay the costs of the first and second opponents of the action as and from 7 November 2004, such costs to be assessed on the ordinary basis; (h) Each of the claimant and the second and third opponents to pay its own costs of the first and third cross-claims; (i) Each of the second and third opponent to pay its own costs to date of the fourth cross-claim; (j) The first, second and third opponents to pay the claimant’s costs of the summons for leave to appeal and the appeal but to have with respect to the latter a certificate under the Suitor’s Fund Act 1951, if otherwise qualified
CATCHWORDS:	PROCEDURE – COSTS – costs appeal – multiple claims and cross-claims arising from substantive proceedings – principles – scope of primary judge’s discretion as to costs award – basis for order concerning indemnity costs – costs of appeal where represented by both senior and junior counsel
LEGISLATION CITED:	Arbitration (Civil Actions) Act 1983, s 18 District Court Act 1973, s 63A District Court Rules 1973, pt 39A r9 Law Reform (Miscellaneous Provisions) Act 1946, s 5(1) Legal Profession Act 1987, ss 198D, 198G Roads Act 1993, s 142 Uniform Civil Procedure Act 2005, s 98 Uniform Civil Procedure Rules 2005, r 42.1
CASES CITED:	Anglo Cyprian Trade Agency Ltd v Paphos Wine Industries Ltd [1951] 1 All ER 873 Arian v Nguyen [2001] 33 MVR 37; NSWCA 5 Australian Coal & Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 Boylan Nominees Pty Ltd v Williams Refrigeration Australia Pty Ltd [2006] NSWCA 100 Houatchanthara v Bednarczyk (Court of Appeal, 14 October 1996, unreported) House v The King (1936) 55 CLR 499 Howard v Telstra Corporation Ltd [2003] NSWCA 188 Latoudis v Casey (1990) 170 CLR 543 LMI Australasia Pty Ltd v Baulderstone Hornibrook Pty Ltd [2003]…