Tzaneros Investment Pty Ltd v Walker Group Construction Pty Limited; Walker Group Construction Pty Limited v Tzaneros Investment Pty Ltd

[2023] NSWCA 122

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Tzaneros Investment Pty Ltd v Walker Group Construction Pty Limited; Walker Group Construction Pty Limited v Tzaneros Investment Pty Ltd [2023] NSWCA 122

Hearing dates:

29 May 2023

Date of orders:

29 May 2023

Decision date:

29 May 2023

Before:

Brereton JA

Decision:

By consent:

(1)   Set aside the orders of the District Court made on 6 March 2023.

(2)   Remit the matter to the District Court, differently constituted.

(3)   Costs of the hearing at first instance are reserved to the judge of the District Court hearing the matter afresh.

(4)   No order as to costs of the proceedings in this Court to the intent that each party bear its own costs.

Catchwords:

JUDGMENTS AND ORDERS – Judicial review – Consent orders – Setting aside orders of District Court – Where sufficiently reasonable argument primary judge misapprehended the question – Orders set aside – Question of remitter to Court differently constituted – Where finding of credit discernible in primary judgment – Matter remitted to District Court differently constituted

Legislation Cited:

Legal Profession Act 2004 (NSW), s 363, s 384

Supreme Court Act 1970 (NSW), s 46

Cases Cited:

John Lysaght Australia Ltd v Butfield [1995] NSWCA 221

Category:

Principal judgment

Parties:

2023/112074
Tzaneros Investment Pty Ltd (Applicant)
Walker Group Construction Pty Limited (First Respondent)
The Manager, Costs Assessment (Second Respondent)
District Court of NSW (Third Respondent)

2023/152844
Walker Group Constructions Pty Limited (Applicant)
Tzaneros Investments Pty Ltd (First Respondent)
District Court of NSW (Second Respondent)

Representation:

Counsel:
2023/112074
Mr M Dempsey SC & Mr NYH Li (Applicant)
Mr M Green SC (First Respondent)

2023/152844
Mr M Green SC (Applicant)
Mr M Dempsey SC & Mr NHH Li (First Respondent)

Solicitors:
2023/112074
Sarvaas Clappara Lawyers (Applicant)
Clayton Utz (First Respondent)
Crown Solicitor for NSW (Second & Third Respondents)

2023/152844
Clayton Utz (Applicant)
Sarvaas Clappara Lawyers (First Respondent)
Crown Solicitor for NSW (Second Respondent)

File Number(s):

2023/112074;
2023/152844

Publication restriction:

N/A

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Civil

Citation:

--

Date of Decision:

6 March 2023

Before:

Curtis ADCJ

File Number(s):

2022/153457

Judgment (EX TEMPORE)

1. HIS HONOUR: Before the Court are two proceedings in which both parties to costs assessment proceedings seek judicial review of a judgment of the District Court on an appeal from a decision of a costs assessment review panel pursuant to Legal Profession Act 2004 (NSW), s 384, on a question of law. That decision was itself made after the remitter to the District Court of the matter as a result of an earlier appeal to the District Court from an earlier decision of another costs assessment review panel.

2. The parties have agreed on and proffered to the Court short minutes of orders disposing of the judicial review proceedings by setting aside the orders of the District Court and remitting the matter to the District Court, differently constituted.

3. Because the granting of relief by way of judicial review involves an exercise of discretion by the Court, it has appropriately been referred to a judge for the making of the consent orders. The judgment of Mahoney JA in John Lysaght Australia Ltd v Butfield [1995] NSWCA 221 suggests that the powers of a single judge of appeal under Supreme Court Act 1970 (NSW), s 46, extend to circumstances such as these. That judgment also importantly indicates, as I would emphasise in the present proceedings, that the Court's granting of that relief does not involve any determination by the Court that any ground of review has been made good. I am however satisfied that there is a sufficiently reasonable argument that his Honour's apparent view that the matter was governed by s 363 of the Legal Profession Act involved a misapprehension of the question, as to make it appropriate to accede to the parties’ request.

4. The question of remitter to the Court differently constituted is a delicate one, and is a course not ordinarily taken except where there is a reasonable apprehension that the primary judge may not to be open to reconsideration of the matter unaffected by earlier views, or where findings of credit are concerned, because a party may reasonably apprehend that a view as to credit, once formed, may not easily be dissipated. In this case, given the agreement of the parties, I am satisfied that sufficient ground for so qualifying the remitter is to be found in para 4 of his Honour's judgment, from which a finding as to credit is discernible.

5. In those circumstances, I am prepared to make the orders which the parties seek. In each proceeding the Court by consent makes the following orders:

1. Set aside the orders of the District Court made on 6 March 2023.

2. Remit the matter to the District Court, differently constituted.

3. Costs of the hearing at first instance are reserved to the judge of the District Court hearing the matter afresh.

4. No order as to costs of the proceedings in this Court to the intent that each party bear its own costs.

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Decision last updated: 31 May 2023