Court of Appeal
Supreme Court
New South Wales
- Summary available
- Amendment notes
Medium Neutral Citation: Tonab Investments Pty Ltd v Optima Developments Pty Ltd [2015] NSWCA 287 Hearing dates: 20 August 2015 Date of orders: 25 September 2015 Decision date: 25 September 2015 Before: Meagher JA at [1];
Ward JA at [2];
Leeming JA at [74]Decision: (1) Dismiss the applicants’ summons seeking leave to appeal with costs.
(2) Order that the decision made on 19 December 2014 by his Honour Judge Levy in the District Court be quashed.
(3) Order that the proceedings be remitted to the District Court solely on the question as to the costs of the proceedings in the District Court and of the Local Court proceedings.
(4) Direct that otherwise the appeal from the decisions of his Honour Magistrate Day made on 18 December 2013 and 29 April 2014 (with the exception of the correction to the amount of the principal damages from $9,843.16 to $9,643.16) be allowed.
(5) Order that the respondent pay the applicants’ costs of their summons seeking judicial review of the decision made on 19 December 2014.Catchwords: ADMINSTRATIVE LAW – judicial review – decision of the District Court dismissing appeal from Local Court – whether jurisdictional error or error of law on the face of the record – whether Local Court magistrate acted outside the jurisdiction of the Court by making an order for indemnity costs - whether Local Court magistrate acted outside the jurisdiction of Court by transferring proceedings from the Small Claims Division to the General Division after judgment had been made in the proceedings
PRACTICE AND PROCEDURE – slip rule – Uniform Civil Procedure Rules 2005 (NSW), r 36.17 - application of slip rule – whether properly exercised nunc pro tunc in transferring proceedings from Small Claims Division to General Division of the Local Court after judgment had been entered for indemnity costs beyond the jurisdiction of the Court sitting in its Small Claims DivisionLegislation Cited: Arbitration Act 1889 (UK)
Civil Procedure Act 2005 (NSW), ss 4, 56, 57, 58, 59, 98
Civil Procedure Regulation 2012 (NSW), Sch 1
District Court Act 1973 (NSW), s 176
Legal Profession Act 2004 (NSW), s 208
Legal Profession Regulation 2005, Sch 2 Pt 3
Local Court Act 2007 (NSW), ss 9, 10, 29, 30, 31, 35, 36, 37, 39
Local Court Rules 2009 (NSW),, rr 2.2, 2.3, 2.9, Div 2 Pt 2
Local Courts Act 1982 (NSW)
Supreme Court Act 1970 (NSW), s 69
Uniform Civil Procedure Rules 2005 (NSW), rr 1.6, 36.11, 36.17Cases Cited: Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529
Baker v David [2015] NSWCA 235
Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
Bentley v O’Sullivan [1925] WN 95
Boele v Rinbac Pty Ltd [2014] NSWCA 451; (2014) 88 NSWLR 381
Buttrose v Attorney General of New South Wales [2015] NSWCA 221
Campbelltown City Council v Vegan (2006) 67 NSWLR 371
Charafeddine v Morgan [2014] NSWCA 74
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- Case
- [2015] NSWCA 287
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court of Appeal were whether the Local Court magistrate had committed a jurisdictional error or an error of law on the face of the record by making an order for indemnity costs, and by transferring the proceedings to the General Division after judgment. Relatedly, the court considered whether the slip rule, specifically rule 36.17 of the Uniform Civil Procedure Rules 2005 (NSW), was properly exercised *nunc pro tunc* to effect the transfer of proceedings from the Small Claims Division to the General Division of the Local Court after judgment had been entered for indemnity costs, which were beyond the jurisdiction of the Court sitting in its Small Claims Division.
The Court of Appeal found that the Local Court magistrate had erred in law by making an order for indemnity costs, as this exceeded the jurisdiction of the Small Claims Division. Furthermore, the court held that the subsequent transfer of the proceedings to the General Division, purportedly under the slip rule, was also an error of law, as the slip rule could not be used to effect a substantive alteration of the judgment or to cure a jurisdictional error that had already occurred. The court determined that the District Court had erred in dismissing the applicants' appeal.
Consequently, the Court of Appeal dismissed the applicants' summons seeking leave to appeal with costs. However, the court quashed the decision of the District Court judge and remitted the proceedings to the District Court solely on the question of costs in both the District Court and the Local Court. The court otherwise allowed the appeal from the decisions of the Local Court magistrate, with a minor correction to the principal damages amount. The respondent was ordered to pay the applicants' costs of their summons seeking judicial review.
Orders
Orders of the court
(1) Dismiss the applicants’ summons seeking leave to appeal with costs.
(2) Order that the decision made on 19 December 2014 by his Honour Judge Levy in the District Court be quashed.
(3) Order that the proceedings be remitted to the District Court solely on the question as to the costs of the proceedings in the District Court and of the Local Court proceedings.
(4) Direct that otherwise the appeal from the decisions of his Honour Magistrate Day made on 18 December 2013 and 29 April 2014 (with the exception of the correction to the amount of the principal damages from $9,843.16 to $9,643.16) be allowed.
(5) Order that the respondent pay the applicants’ costs of their summons seeking judicial review of the decision made on 19 December 2014.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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