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Turkmani v Visvalingam (No 2)

Turkmani v Visvalingam (No 2)

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New South Wales

Court of Appeal

CITATION: Turkmani v Visvalingam (No 2) [2009] NSWCA 279

HEARING DATE(S): on the papers

JUDGMENT DATE:
7 September 2009

JUDGMENT OF: Beazley JA at 1; Hodgson JA at 2; McColl JA at 22

DECISION: In addition to the three orders previously made:
(4) Costs of the appellant of the appeal payable pursuant to order (3) not to include the costs of preparation of the blue books and the red book, or the costs of this application.
(5) The costs order below varied to an order that the appellant pay the respondents’ costs of the proceedings on the ordinary basis.

CATCHWORDS: COSTS – Departure from ordinary rule that costs follow the event – Whether issue on which successful appellant failed was clearly severable or clearly dominant – Effect of inefficient conduct of appeal.

CATEGORY: Consequential orders

CASES CITED: Commonwealth of Australia v Gretton [2008] NSWCA 117
James v Surf Road Nominees (No 2) [2005] NSWCA 296
Monie v Commonwealth of Australia (No 2) [2008] NSWCA 15
Roads and Traffic Authority v McGregor (No 2) [2005] NSWCA 453
Rockdale City Council v Micro Developments Pty Limited [2008] NSWCA 128
Turkmani v Visvalingam [2009] NSWCA 211

PARTIES: Ahmad TURKMANI (appellant)
Marie Pryanthi VISVALINGHAM (first respondent)
Stephen VISVALINGHAM by his next friend Marie Visvalingham (second respondent)
Shanara VISVALINGHAM by her next friend Marie Visvalingham (third respondent)
Anika VISVALINGHAM by her next friend Marie Visvalingham (fourth respondent)

FILE NUMBER(S): CA 40382/08

COUNSEL: S G CAMPBELL SC (appellant)
P G MAHONY SC/ S E McCARTHY (respondents)

SOLICITORS: Moray & Agnew (appellant)
McLachlan Chilton (respondents)

CA 40382/08

BEAZLEY JA
HODGSON JA
McCOLL JA
7 SEPTEMBER 2009

Ahmad TURKMANI v Marie Priyanthi VISVALINGAM and Ors (No. 2)

Judgment

1 BEAZLEY JA: I agree with Hodgson JA.

: The principal judgment in this matter was given on 27 July 2009: [2009] NSWCA 211. The following orders were made:

(2) The amounts set out in the order below bearing date 16 October 2008 and 22 October 2008, in respect of the judgment for the respondents and the payment of money to or for the benefit of the various respondents, all to be reduced by one-half, the judgment to bear interest from 16 October 2008.

(3) Respondents to pay the appellant’s costs of the appeal and to have a certificate under the Suitors’ Fund Act 1951 if otherwise eligible.

3 The parties have consented to a further order, to the effect that the costs order below should be changed to an order that the appellant pay the respondents’ costs of the proceedings on the ordinary basis.

4 In addition, the respondents have applied for a variation of the costs order in the Court of Appeal.

5 Two grounds are relied on.

6 First, it is put that the grounds of appeal and the written and oral submissions were mainly concerned with challenging the finding of liability, on which the respondents succeeded; and very little of the appeal case concerned…

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: [2009] NSWCA 279
Decision Date: 7 September 2009

CaseChat Overview and Summary

In *Turkmani v Visvalingam (No 2)*, the New South Wales Court of Appeal considered an application for costs following an earlier appeal. The original dispute concerned a building contract, and the appeal had resulted in the appellant succeeding on some grounds but failing on others. The court was asked to determine how the costs of the appeal and the proceedings below should be allocated, particularly in light of the appellant's partial success and the respondents' alleged inefficient conduct.

The primary legal issues before the Court of Appeal were whether the grounds on which the successful appellant failed were clearly severable from those on which they succeeded, and whether the overall conduct of the appeal had been inefficient. The court also had to consider the appropriate orders for the costs of the appeal itself and the costs of the proceedings in the primary court, in light of the outcome of the appeal.

The Court of Appeal reasoned that while the appellant had achieved some success on appeal, the grounds on which they failed were not clearly severable from the successful grounds. Furthermore, the court found that the conduct of the appeal had been inefficient, which warranted a departure from the ordinary rule that costs follow the event. Consequently, the court ordered that the costs of the appeal payable by the respondents to the appellant should not include the costs of preparing certain documents ("blue books" and "red book") or the costs of the current application. The court also varied the costs order made by the primary court, ordering that the appellant pay the respondents’ costs of the proceedings below on the ordinary basis.

Orders

Orders of the court

In addition to the three orders previously made:

(4) Costs of the appellant of the appeal payable pursuant to order (3) not to include the costs of preparation of the blue books and the red book, or the costs of this application.

(5) The costs order below varied to an order that the appellant pay the respondents’ costs of the proceedings on the ordinary basis.

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.

CITATION:	Turkmani v Visvalingam (No 2) [2009] NSWCA 279
HEARING DATE(S):	on the papers
JUDGMENT DATE:	7 September 2009
JUDGMENT OF:	Beazley JA at 1; Hodgson JA at 2; McColl JA at 22
DECISION:	In addition to the three orders previously made: (4) Costs of the appellant of the appeal payable pursuant to order (3) not to include the costs of preparation of the blue books and the red book, or the costs of this application. (5) The costs order below varied to an order that the appellant pay the respondents’ costs of the proceedings on the ordinary basis.
CATCHWORDS:	COSTS – Departure from ordinary rule that costs follow the event – Whether issue on which successful appellant failed was clearly severable or clearly dominant – Effect of inefficient conduct of appeal.
CATEGORY:	Consequential orders
CASES CITED:	Commonwealth of Australia v Gretton [2008] NSWCA 117 James v Surf Road Nominees (No 2) [2005] NSWCA 296 Monie v Commonwealth of Australia (No 2) [2008] NSWCA 15 Roads and Traffic Authority v McGregor (No 2) [2005] NSWCA 453 Rockdale City Council v Micro Developments Pty Limited [2008] NSWCA 128 Turkmani v Visvalingam [2009] NSWCA 211
PARTIES:	Ahmad TURKMANI (appellant) Marie Pryanthi VISVALINGHAM (first respondent) Stephen VISVALINGHAM by his next friend Marie Visvalingham (second respondent) Shanara VISVALINGHAM by her next friend Marie Visvalingham (third respondent) Anika VISVALINGHAM by her next friend Marie Visvalingham (fourth respondent)
FILE NUMBER(S):	CA 40382/08
COUNSEL:	S G CAMPBELL SC (appellant) P G MAHONY SC/ S E McCARTHY (respondents)
SOLICITORS:	Moray & Agnew (appellant) McLachlan Chilton (respondents)