Zisti v Bartter Enterprises Pty Ltd - [2013] NSWCA 146

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Zisti v Bartter Enterprises Pty Ltd [2013] NSWCA 146
Hearing dates: 23 April 2013
Decision date: 06 June 2013
Before: Beazley P (at [1]); Barrett JA (at [2]); Ward JA (at [84])
Decision:
1. Appeal allowed.
2. Vary Order 3 made by the District Court on 23 January 2012 by:
(a) omitting "30 September 2011,";
(b) omitting the words "such costs to be paid as agreed or assessed on the indemnity basis forthwith";
(c) substituting for the last-mentioned words "such costs to be as agreed or assessed on the indemnity basis in the case of the costs of 17 November 2011 and the ordinary basis in the case of the costs of 9 December 2011 and, in each such case, to be payable forthwith".
3. Set aside Order 4 made by the District Court on 23 January 2012.
4. Set aside the orders made by the District Court on 16 March 2012.
5. Remit the notice of motion filed by the appellant on 29 August 2011 to the District Court for hearing and determination.
6. That the respondent pay the appellant's costs of the appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: PROCEDURE - costs - where plaintiff obtains judgment in default of defence - application by defendant for order setting aside the default judgment - application adjourned on several occasions - orders made against defendant on 23 January 2012 in respect of costs of that and several earlier days, all such costs to be assessed on an indemnity basis and to be payable forthwith - where costs order had already been made in respect of one such day - whether the later order for that day should be set aside - whether assessment on indemnity basis warranted - PROCEDURE - order for payment of specified sum "on account of" costs already ordered - whether District Court had power to make such order - whether order made on wrong principle - defendant's pending application for order setting aside default judgment dismissed because of failure to pay the specified sum "on account of" costs already ordered - no attention to the merits of the case - whether the order of dismissal should be set aside
Legislation Cited: Civil Procedure Act 2005, s 98
Uniform Civil Procedure Rules 2005, rules 2.1, 42.7(2), 47.21
Cases Cited: Ex parte Currie; Re Dempsey (1969) 70 SR (NSW) 443
Guttershield Systems Australia Pty Ltd v LBI Holdings Pty Ltd (No 2) (2009) NSWSC 1409
Harrison v Schipp [2002] NSWCA 213; (2002) 54 NSWLR 738
House v The King [1936] HCA 40;

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: [2013] NSWCA 146
Decision Date: 06 June 2013

CaseChat Overview and Summary

In Zisti v Bartter Enterprises Pty Ltd, the appellant sought to appeal orders made by the District Court on 23 January 2012 and 16 March 2012. These orders concerned costs arising from the appellant's application to set aside a default judgment obtained by the respondent. The dispute centred on the nature of the costs ordered, the basis of their assessment, and the consequences of non-payment.

The primary legal issues before the Court of Appeal were whether the District Court had the power to make the orders it did, particularly regarding the assessment of costs on an indemnity basis and the order for payment of a specified sum "on account of" costs. The court also considered whether the District Court had applied the correct principles in dismissing the appellant's application to set aside the default judgment due to non-payment of the specified sum, without regard to the merits of the underlying application.

The Court of Appeal found that the District Court had erred in its orders. It determined that the order for costs on 23 January 2012, which purported to vary an earlier costs order, was made on the wrong principle. Specifically, the court varied the order to clarify that costs for 17 November 2011 were to be assessed on an indemnity basis, while costs for 9 December 2011 were to be on the ordinary basis. Furthermore, the court set aside the order made on 16 March 2012, which had dismissed the appellant's application to set aside the default judgment. This dismissal was found to be erroneous as it was based solely on the failure to pay a sum "on account of" costs, without considering the merits of the application to set aside the default judgment. The court allowed the appeal, varied certain costs orders, set aside others, and remitted the appellant's original notice of motion to the District Court for hearing and determination. The respondent was ordered to pay the appellant's costs of the appeal.

Orders

Orders of the court

1. Appeal allowed.

2. Vary Order 3 made by the District Court on 23 January 2012 by:

(a) omitting "30 September 2011,";

(b) omitting the words "such costs to be paid as agreed or assessed on the indemnity basis forthwith";

(c) substituting for the last-mentioned words "such costs to be as agreed or assessed on the indemnity basis in the case of the costs of 17 November 2011 and the ordinary basis in the case of the costs of 9 December 2011 and, in each such case, to be payable forthwith".

3. Set aside Order 4 made by the District Court on 23 January 2012.

4. Set aside the orders made by the District Court on 16 March 2012.

5. Remit the notice of motion filed by the appellant on 29 August 2011 to the District Court for hearing and determination.

6. That the respondent pay the appellant's costs of the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

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.

Medium Neutral Citation:	Zisti v Bartter Enterprises Pty Ltd [2013] NSWCA 146
Hearing dates:	23 April 2013
Decision date:	06 June 2013
Before:	Beazley P (at [1]); Barrett JA (at [2]); Ward JA (at [84])
Decision:	1. Appeal allowed. 2. Vary Order 3 made by the District Court on 23 January 2012 by: (a) omitting "30 September 2011,"; (b) omitting the words "such costs to be paid as agreed or assessed on the indemnity basis forthwith"; (c) substituting for the last-mentioned words "such costs to be as agreed or assessed on the indemnity basis in the case of the costs of 17 November 2011 and the ordinary basis in the case of the costs of 9 December 2011 and, in each such case, to be payable forthwith". 3. Set aside Order 4 made by the District Court on 23 January 2012. 4. Set aside the orders made by the District Court on 16 March 2012. 5. Remit the notice of motion filed by the appellant on 29 August 2011 to the District Court for hearing and determination. 6. That the respondent pay the appellant's costs of the appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	PROCEDURE - costs - where plaintiff obtains judgment in default of defence - application by defendant for order setting aside the default judgment - application adjourned on several occasions - orders made against defendant on 23 January 2012 in respect of costs of that and several earlier days, all such costs to be assessed on an indemnity basis and to be payable forthwith - where costs order had already been made in respect of one such day - whether the later order for that day should be set aside - whether assessment on indemnity basis warranted - PROCEDURE - order for payment of specified sum "on account of" costs already ordered - whether District Court had power to make such order - whether order made on wrong principle - defendant's pending application for order setting aside default judgment dismissed because of failure to pay the specified sum "on account of" costs already ordered - no attention to the merits of the case - whether the order of dismissal should be set aside
Legislation Cited:	Civil Procedure Act 2005, s 98 Uniform Civil Procedure Rules 2005, rules 2.1, 42.7(2), 47.21
Cases Cited:	Ex parte Currie; Re Dempsey (1969) 70 SR (NSW) 443 Guttershield Systems Australia Pty Ltd v LBI Holdings Pty Ltd (No 2) (2009) NSWSC 1409 Harrison v Schipp [2002] NSWCA 213; (2002) 54 NSWLR 738 House v The King [1936] HCA 40;