Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Cyril Smith & Associates Pty Ltd v The Owners-Strata Plan No 64970 (No 2) [2011] NSWCA 245
• Hearing dates: On the papers
• Decision date: 23 August 2011
• Before: Bathurst CJ at 1; Basten JA at 2; Young JA at 14

Decision

(1) Allow the appeal and set aside orders 8, 10 and 11 made on 31 May 2010 in the Equity Division, together with:

(a) order 2, as against the appellant, to the extent that it made the orders set out in paragraph 1 of the plaintiff's short minutes of order; and

(b) order 9, to the extent that it made the orders set out in paragraphs 4(a) and 5(a) of the short minutes of order "A".

(2) In place of the orders set aside, as between the appellant and the first respondent:

(a) give judgment for the appellant on the first respondent's amended summons;

(b) order that the first respondent pay the appellant's costs in the Court below in respect of the claims made by the first respondent in its amended summons, including the costs of those claims in the proceedings before the referee;

(c) subject to (d), order the first respondent to pay the appellant's costs of the appeal;

(d) order the appellant to pay the first respondent's costs of and incidental to the finalisation of the orders in this Court.

(3) In place of the orders set aside, as between the appellant and the second respondent:

(a) give judgment for the appellant on the first cross-claim brought by the second respondent and order the second respondent to pay the appellant's costs thereof;

(b) give judgment for the second respondent on the second cross-claim brought by the appellant, with no order as to costs;

(c) order the second respondent to pay the appellant's costs of the appeal in respect of the first cross-claim brought by the second respondent, on the ordinary basis up until 15 February 2011, and thereafter as a submitting party.

(4) Grant the first respondent a certificate under the Suitors' Fund Act 1951 (NSW), unless disentitled pursuant to s 6(7) thereof.

[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: COSTS - of appeal - exception to the general rule that costs follow the event - omission to address the orders adequately; COSTS - of trial - orders to provide separately for costs of claim and cross-claims; PROCEDURE - civil - judgments and orders - appeal from orders entered on Court's computerized record system - how orders to be entered - orders on system to be self-contained
• Cases Cited: Cyril Smith & Associates Pty Ltd v The Owners - Strata Plan No 64970 [2011] NSWCA 181
• Category: Consequential orders
• Parties: Cyril Smith & Associates Pty Ltd (Appellant); The Owners - Strata Plan No. 64970 (First Respondent; Austruc Constructions Ltd (In liq) (Second Respondent)
• Representation: Counsel: I D Faulkner SC/N E Chen - Appellant; F P Hicks - First Respondent; Submitting appearance - Second Respondent; Solicitors: Kennedys - Appellant; David Le Page Solicitor - First Respondent; Carneys Lawyers - Second Respondent
• File Number(s): 2005/270978

Decision under appeal

• Citation: [2009] NSWSC 208; [2010] NSWSC 212; [2010] NSWSC 568
• Before: Bergin CJ in Eq
• File Number(s): 2005/55048

Judgment

1 BATHURST CJ : I agree with Basten JA.

2 BASTEN JA : The principal judgment in this matter was delivered on 6 July 2011: Cyril Smith & Associates Pty Ltd v The Owners - Strata Plan No 64970 [2011] NSWCA 181. The appellant was successful in challenging the bases upon which judgment had been given against it in the Court below. However, the proceedings below had involved several parties with claims and cross-claims and it was unclear which orders the appellant sought to overturn. It was given an opportunity to identify the orders it sought and the reasons therefor.

3 The owners corporation (the first respondent) and the builder (the second respondent) were also given an opportunity to respond to the orders proposed by the appellant. The owners corporation availed itself of that opportunity; the builder, which is presently in liquidation, did not.

4 Because the effect of the orders made below was unclear, it is convenient to set out those orders which the appellant seeks to overturn. Although some of the orders are said to be made "by consent", that language appears to have been intended to convey agreement by the parties as to the appropriate form of orders to give effect to the conclusions reached in prior judgments. The orders were made on 31 May 2010 and entered on 4 June 2010 in the Court's computerised record system. So that other parties involved in the original proceedings may know which orders have been varied, it is convenient to set them out in the form in which they appear in the records.

"2. By consent I make the orders in paragraphs 1, 2 and 3 of the Short Minutes of Order initialled by me and dated today.

...

8. I make the order in paragraph 4 of the Short Minutes of Order initialled by me and dated today.

9. I make the orders in paragraphs 4 and 5 of the Short Minutes of Order initialled by me and marked "A" and dated today.

10. In respect of the proceedings before the Referee the plaintiff is to pay 50% of CSA's costs.

11. In respect of all proceedings in this Court, being each of the adoption hearings and other appearances, as between the Plaintiff and CSA each party is to pay their own costs."

5 The challenge to order 2 related only to paragraph 1 of the short minutes referred to therein. Order 8 referred to paragraph 4 of the short minutes of order. In each case, they are the short minutes identified in the orders as "[Plaintiff's] Short Minutes of Order". Paragraphs 1 and 4 read as follows:

"1. Order the Referee's reports dated 26 June 2008, 24 September 2008 and 2 August 2009 be adopted except as varied by decisions of the Court ([2009] NSWSC 208; [1010] (sic) NSWSC 60 and [2010] NSWSC 212) as follows:

(a) the Referee's findings in the report dated 26 June 2008, that the Plaintiff (Owners Corporation) was vulnerable in respect of the facade (excluding the lack of sub-sills in the windows) be rejected;

(b) the Referee's 'Negligence Explanation', in the report dated 2 August 2009, be rejected; and

(c) the Referee's findings, in the reports dated 26 June 2008 and 24 September 2008, on the Contents Claim, so far as they relate to the Second Defendant (CSA), be rejected.

...

4. Judgment for the Plaintiff (Owners Corporation) against the Second Defendant (CSA) in the amount of $170,804.18."

6 Order 9 referred to the short minutes of order marked "A". The appellant sought to set aside only sub-paragraphs (a) of paragraphs 4 and 5 respectively. These provided:

"SHORT MINUTES OF ORDER 'A'

4. Judgment for the Cross Claimant to the First Cross Claim (Austruc):

(a) against the Second Cross-Defendant (CSA) in the amount of $297,791;

...

5. With respect to the Second Cross Claim:

(a) Judgment for CSA against the Second Cross-Defendant (Austruc) in the amount of $115,771.02 ...."

7 The owners corporation (the plaintiff in the proceedings below) does not oppose the setting aside of any of these orders. One effect will be to set aside the only order made below which adopted the reports of the referee, subject to exceptions. To avoid that order having consequences for other aspects of the proceedings, it is to be set aside only as between the appellant and the owners corporation; in any event the results are otherwise encompassed within express orders which are not to be varied. Accordingly, it is appropriate to set aside those orders.

8 Of the orders sought by the appellant in place of those set aside, the only resistance from the owners corporation relates to the following proposed orders:

"4. First respondent to pay the appellant's costs in the Court below, including the costs of the proceedings before the referee.

5. First respondent to pay the appellant's costs of the appeal."

9 In respect of proposed order 4, the owners corporation accepts its obligation to pay the appellant's costs in the Court below, including the costs of proceedings before the referee, but only to the extent that they relate to claims brought by the owners corporation, thus excluding the costs of cross-claims between the defendants in the Court below. That appears to conform to the intention of the primary judge in order 11, dealing with the costs "as between" the owners corporation and the appellant. Costs of the various cross-claims were dealt with separately. Those separate orders have not been vacated. It is convenient to identify the costs the subject of proposed order 4 as the costs incurred by the appellant in respect of claims brought by the owners corporation. That order is intended to be subject to order 6, dealing with the costs of the present application, a factor which should be made express.

10 The owners corporation also resisted an order that it pay the appellant's costs of the appeal. The opposition was based on the failure of the appellant to seek such an order in its notice of appeal. The omission was conceded by the appellant in its submissions in support of the proposed orders; if required, it sought leave to amend.

11 As noted, the need to provide further submissions in respect of the orders sought resulted from the omission of the appellant to address the orders adequately either in its notice of appeal or its written submissions (or at the hearing of the appeal). As a result, the appellant accepts that it must pay the owners corporation's costs in respect of this final stage of the proceedings. The owners corporation does not assert that it was prejudiced by the failure of the appellant to claim costs of the appeal in the notice of appeal. It assumed in its written submissions that, if it were successful, the appeal would be dismissed with costs. The appeal having been successful, there is no reason why the appellant should not obtain an order for its costs, according to the usual practice.

12 The owners corporation seeks, in addition to the orders proposed by the appellant, the grant of a certificate under the Suitors' Fund Act 1951 (NSW). It omitted to make that application in its written submissions; nevertheless, it should have such a certificate, if not precluded by s 6(7) of the Suitors' Fund Act .

Conclusions

13 The Court makes the following orders:

(1) Allow the appeal and set aside orders 8, 10 and 11 made on 31 May 2010 in the Equity Division, together with:

(a) order 2, as against the appellant, to the extent that it made the orders set out in paragraph 1 of the plaintiff's short minutes of order; and

(b) order 9, to the extent that it made the orders set out in paragraphs 4(a) and 5(a) of the short minutes of order "A".

(2) In place of the orders set aside, as between the appellant and the first respondent:

(a) give judgment for the appellant on the first respondent's amended summons;

(b) order that the first respondent pay the appellant's costs in the Court below in respect of the claims made by the first respondent in its amended summons, including the costs of those claims in the proceedings before the referee;

(c) subject to (d), order the first respondent to pay the appellant's costs of the appeal;

(d) order the appellant to pay the first respondent's costs of and incidental to the finalisation of the orders in this Court.

(3) In place of the orders set aside, as between the appellant and the second respondent:

(a) give judgment for the appellant on the first cross-claim brought by the second respondent and order the second respondent to pay the appellant's costs thereof;

(b) give judgment for the second respondent on the second cross-claim brought by the appellant, with no order as to costs;

(c) order the second respondent to pay the appellant's costs of the appeal in respect of the first cross-claim brought by the second respondent, on the ordinary basis up until 15 February 2011, and thereafter as a submitting party.

(4) Grant the first respondent a certificate under the Suitors' Fund Act 1951 (NSW), unless disentitled pursuant to s 6(7) thereof.

14 YOUNG JA : I agree with Basten JA, but wish to make a few general comments.

15 As is apparent from the principal judgment in this case, this Court had a considerable problem in formulating the proper orders because of the manner in which the orders below were entered.

16 The computerisation of the Court records unfortunately means that it is no longer appropriate to enter judgment as "Orders 1-4 in Short Minutes initialled by Judge on 1/1/2011". The actual words of the orders must be entered. The computer system also means that it is no longer possible to have handwritten short minutes.

17 This means that, particularly in a heavy list such as occurs in the Commercial List, the party who is seeking entry of the orders should provide the Associate with both a hard copy and electronic copy of the Short Minutes. The former can be left on the file and scanned for any appeal book. The latter can be used by the Associate to enter the order electronically so that there is no confusion as to the exact terms of the order.

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Decision last updated: 23 August 2011