Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Scaife v Coceancig [2012] NSWCA 159
• Hearing dates: 21 May 2012
• Decision date: 21 May 2012
• Before: Tobias AJA

Decision

1.The proceedings are dismissed.

2.The applicant is to pay the first respondent's costs of the proceedings, including the costs of the Amended Notice of Motion, fixed in the amount of $18,750.00.

[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: PRACTICE AND PROCEDURE - application for dismissal of proceedings by respondent - applicant bankrupt - trustee does not wish to proceed - costs.
• Legislation Cited: Consumer, Trader and Tenancy Tribunal Act 2001 (NSW); Home Building Act 1989 (NSW); Supreme Court Act 1970 (NSW); Uniform Civil Procedure Rules 2005
• Cases Cited: Foots v Southern Cross Mine Management Pty Limited (2007) HCA 56; (2007) 234 CLR 52
• Category: Procedural and other rulings
• Parties: Helen Joy SCAIFE (applicant); Angela COCEANCIG (first respondent); DISTRICT COURT OF NSW (second respondent)
• Representation: Counsel: No appearance (applicant); J P Knackstredt (first respondent); H M Stenning (solicitor) (second respondent); Solicitors: Unrepresented (applicant); Cantle Carmichael Lawyers (first respondent); Crown Solicitors Office
• File Number(s): 2012/18328

Decision under appeal

• Date of Decision: 2012-03-01 00:00:00
• Before: Sidis DCJ
• File Number(s): 2011/394051

Judgment

1 TOBIAS AJA: The respondent is the owner of a residential property in Warners Bay NSW, which she purchased from the applicant on 19 February 2008. The applicant was the owner/builder of the premises.

2 After the respondent purchased her home from the applicant she discovered that it suffered from a significant number of building defects. In consequence of that discovery, on 27 November 2009 the respondent filed an originating application in the Consumer Trader and Tenancy Tribunal (the Tribunal) at Newcastle in its Home Building Division.

3 On 13 July 2010, the applicant filed an interlocutory application seeking to have the substantive proceedings summarily dismissed on the basis that they had been commenced outside the limitation period prescribed by ss 18E and 48K of the Home Building Act 1989 (NSW). Following a contested hearing, that application was dismissed by the Tribunal because it rejected the applicant's evidence in relation to the time at which the relevant "residential building work" had been completed.

4 On 23 June 2011, the applicant instituted an appeal against the Tribunal's decision in the District Court of NSW at Newcastle pursuant to s 67 of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) (CTTT Act). On 4 November 2011, that appeal was heard and dismissed by Sidis DCJ.

5 The substantive proceedings subsequently continued before the District Court at Newcastle following an order made by the Tribunal on 20 July 2011 pursuant to s 23 of the CTTT Act that they be transferred to that court.

6 On 16 February 2012, following the applicant's failure to file a defence in accordance with the District Court's case management directions, default judgment was entered against the applicant in the substantive proceedings with damages to be assessed.

7 On 1 March 2012 an order was made in the District Court assessing the first respondent's damages against the applicant in the sum of $883,360.26 and judgment was entered in her favour for that amount.

8 On 18 January 2012 the applicant filed a summons in this Court purportedly seeking leave to appeal against that decision but in truth seeking an order under s 69 of the Supreme Court Act 1970 (NSW) for an order in the nature of certiorari in relation to the orders made by Sidis DCJ on 4 November 2011.

9 The evidence establishes that on 29 February 2012 the Insolvency and Trustee Service Australia (ITSA) accepted a debtor's petition filed by the applicant pursuant to which she became a bankrupt. Ultimately, on 11 April 2012 ITSA was replaced as her trustee in bankruptcy and the trustee of her bankrupt estate became Mr R G Tolcher of Lawler Partners.

10 On 16 February 2012 a notice of motion was filed on behalf of the first respondent seeking an order that the summons be dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 or pursuant to the inherent jurisdiction of the Court. The summons was amended on 23 April 2012 as a result of the applicant's bankruptcy to delete those parts of the original notice of motion that sought security for costs in respect of the applicant's summons.

11 The evidence satisfies me that the relevant documentation, being the amended notice of motion and the various affidavits that have been filed in support, has been served both on the applicant's original solicitors, who have not responded thereto nor filed a notice of ceasing to act, as well upon ITSA and, after Mr Tolcher became trustee, upon him.

12 On 7 May 2012 Mr Tolcher, as trustee of the applicant's bankrupt estate, wrote to the solicitors for the first respondent acknowledging his appointment as trustee on 11 April 2012 and advising that as trustee he would not be continuing with the applicant's proceedings in this Court.

13 In these circumstances it is appropriate that the applicant's summons be dismissed and I so order.

14 The first respondent seeks an order for costs in relation to the proceedings and has provided me with a copy of the decision of the High Court in Foots v Southern Cross Mine Management Pty Limited (2007) HCA 56; (2007) 234 CLR 52, particularly at [65] to [67]. The effect of the decision in that case is that it is open to me to make an order for costs in favour of the first respondent in respect of the applicant's summons notwithstanding that she is bankrupt. I am therefore prepared to make such an order.

15 Affidavit evidence has been filed on behalf of the first respondent assessing those costs in the amount of $18,750. I see no reason why I should not make an order in that amount. Accordingly, I make orders in terms of the short minutes of order initialled by me and placed with the papers.

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Decision last updated: 08 June 2012