Whall v Stamp (No 2) - [2019] NSWCA 284

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Whall v Stamp (No 2) [2019] NSWCA 284
Hearing dates: On the papers
Date of orders: 28 November 2019
Decision date: 28 November 2019
Before: Basten JA; Leeming JA; Payne JA
Decision:
(1)   Refuse proposed orders 1-3 of in the notice of motion filed on 18 October 2019.
(2) Grant the respondent to the appeal (Mrs Stamp) a certificate under s 6 of the Suitors’ Fund Act 1951 (NSW) in respect of Court of Appeal Proceedings No. 2019/21362, other than the costs of this motion.
(3)   Otherwise dismiss Mrs Stamp’s notice of motion filed on 18 October 2019.
(4)   Order that the applicant (Mrs Stamp) pay the costs of the respondent to the motion (Mr Whall).

Catchwords: COSTS – party/party – appeals – orders seeking declaratory and injunctive relief about a costs order made over three months prior dismissed as the issue was not raised in the appeal proceedings – order seeking variation of the costs order incompetent as filed out of time – Suitors’ Fund certificate granted
Legislation Cited: Civil Procedure Act 2005 (NSW), s 14
Suitors’ Fund Act 1951 (NSW), s 6
Uniform Civil Procedure Rules 2005 (NSW), rr 36.16, 42.7
Cases Cited: Deputy Commissioner of Taxation v Meredith (No 2) (2008) 75 NSWLR 462; [2008] NSWCA 133
Hancock v Arnold; Dodd v Arnold (No 2) [2009] NSWCA 19
In the matter of an application by Sahab Holdings Pty Limited [2014] NSWCA 299
Metropolitan Petar v The Macedonian Orthodox Community Church St Petka Inc (No 2) [2007] NSWCA 142
Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 4) [2018] NSWCA 52
Wardle v Agricultural and Rural Finance Pty Ltd; Agricultural and Rural Finance Pty Ltd v Brakatselos (No 2) [2012] NSWCA 388
Whall v Stamp [2019] NSWCA 163
Category: Costs
Parties: Arthur Whall (Appellant / Respondent on the motion)
Audrey Edith Stamp (Respondent / Applicant on the motion)
Representation:
Counsel:
J E F Brown / N Condylis (Appellant / Respondent on the motion)
J Horowitz (Respondent / Applicant on the motion)
Solicitors:
Owen Hodge Lawyers (Appellant / Respondent on the motion)
Ronald S Czinner & Co (Respondent / Applicant on the motion)

File Number(s): 2019/21362
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity - Duty List

Citation:

[2018] NSWSC 1811

Date of Decision:

23 November 2018

Before:

Lindsay J

File Number(s):

2018/355313

Judgment

THE COURT: On 8 July 2019, this Court delivered its primary judgment: Whall v Stamp [2019] NSWCA 163. In what follows familiarity with that decision is assumed. The orders of the Court were:

“(1)    Leave to appeal granted.
(2)    Grant the appellant leave (to the extent necessary) to rely on further evidence to establish that he lost the possibility of a different outcome, but otherwise dismiss the appellant’s motion dated 22 May 2019.
(3)    Dismiss the respondent’s motion to call further evidence dated 1 May 2019.
(4)    Direct that the draft Amended…

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.

Continue reading Whall v Stamp (No 2)

Details

AGLC: Whall v Stamp (No 2) [2019] NSWCA 284
Case: [2019] NSWCA 284
Decision Date: 28 November 2019

CaseChat Overview and Summary

In *Whall v Stamp (No 2)*, the applicant, Mrs Stamp, sought orders from the Court of Appeal of New South Wales concerning a costs order made against her in earlier proceedings. The respondent was Mr Whall. The dispute centred on Mrs Stamp's attempt to vary or set aside a costs order that had been made against her more than three months prior to her filing the current notice of motion.

The Court of Appeal was required to determine whether it had the power to grant the relief sought by Mrs Stamp. Specifically, the court had to consider whether her application to vary the costs order was competent, given that it was filed significantly out of time. Furthermore, the court had to assess whether the issues raised in her notice of motion were properly before it, particularly in light of the fact that they had not been raised in the original appeal proceedings.

The court reasoned that the orders sought by Mrs Stamp in her notice of motion, which aimed to vary or set aside the previous costs order, were incompetent. This was primarily because the application was filed out of time, exceeding the permissible period for such applications. The court also found that the substantive issues Mrs Stamp sought to raise were not part of the original appeal proceedings, and therefore, the court could not entertain them in this context. Consequently, the court refused the proposed orders relating to the variation of the costs order.

The court ordered that Mrs Stamp's notice of motion be dismissed, with the exception of the costs of the motion itself. Mrs Stamp was ordered to pay Mr Whall's costs of the motion. However, the respondent, Mrs Stamp, was granted a certificate under section 6 of the *Suitors’ Fund Act 1951* (NSW) in respect of the earlier Court of Appeal proceedings, excluding the costs associated with the current motion.

Orders

Orders of the court

(1) Refuse proposed orders 1-3 of in the notice of motion filed on 18 October 2019.

(2) Grant the respondent to the appeal (Mrs Stamp) a certificate under s 6 of the Suitors’ Fund Act 1951 (NSW) in respect of Court of Appeal Proceedings No. 2019/21362, other than the costs of this motion.

(3) Otherwise dismiss Mrs Stamp’s notice of motion filed on 18 October 2019.

(4) Order that the applicant (Mrs Stamp) pay the costs of the respondent to the motion (Mr Whall).

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.

Medium Neutral Citation:	Whall v Stamp (No 2) [2019] NSWCA 284
Hearing dates:	On the papers
Date of orders:	28 November 2019
Decision date:	28 November 2019
Before:	Basten JA; Leeming JA; Payne JA
Decision:	(1) Refuse proposed orders 1-3 of in the notice of motion filed on 18 October 2019. (2) Grant the respondent to the appeal (Mrs Stamp) a certificate under s 6 of the Suitors’ Fund Act 1951 (NSW) in respect of Court of Appeal Proceedings No. 2019/21362, other than the costs of this motion. (3) Otherwise dismiss Mrs Stamp’s notice of motion filed on 18 October 2019. (4) Order that the applicant (Mrs Stamp) pay the costs of the respondent to the motion (Mr Whall).
Catchwords:	COSTS – party/party – appeals – orders seeking declaratory and injunctive relief about a costs order made over three months prior dismissed as the issue was not raised in the appeal proceedings – order seeking variation of the costs order incompetent as filed out of time – Suitors’ Fund certificate granted
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 14 Suitors’ Fund Act 1951 (NSW), s 6 Uniform Civil Procedure Rules 2005 (NSW), rr 36.16, 42.7
Cases Cited:	Deputy Commissioner of Taxation v Meredith (No 2) (2008) 75 NSWLR 462; [2008] NSWCA 133 Hancock v Arnold; Dodd v Arnold (No 2) [2009] NSWCA 19 In the matter of an application by Sahab Holdings Pty Limited [2014] NSWCA 299 Metropolitan Petar v The Macedonian Orthodox Community Church St Petka Inc (No 2) [2007] NSWCA 142 Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 4) [2018] NSWCA 52 Wardle v Agricultural and Rural Finance Pty Ltd; Agricultural and Rural Finance Pty Ltd v Brakatselos (No 2) [2012] NSWCA 388 Whall v Stamp [2019] NSWCA 163
Category:	Costs
Parties:	Arthur Whall (Appellant / Respondent on the motion) Audrey Edith Stamp (Respondent / Applicant on the motion)
Representation:	Counsel: J E F Brown / N Condylis (Appellant / Respondent on the motion) J Horowitz (Respondent / Applicant on the motion) Solicitors: Owen Hodge Lawyers (Appellant / Respondent on the motion) Ronald S Czinner & Co (Respondent / Applicant on the motion)
File Number(s):	2019/21362
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity - Duty List Citation: [2018] NSWSC 1811 Date of Decision: 23 November 2018 Before: Lindsay J File Number(s): 2018/355313