One T Development Pty Ltd v Peter Krejci in his capacity as liquidator of ENA Development Pty Ltd (No 2)

THE COURT: This Court dismissed the appeal brought by One T Development Pty Ltd on 2 June 2023: One T Development Pty Ltd v Peter Krejci in his capacity as liquidator of ENA Development Pty Ltd [2023] NSWCA 120. Orders 1 and 4 were in the following terms:

A submission exceeding two pages, signed by Mr Ronald Jemmott, was provided under cover of an email from Mr Carbone on 13 June 2023, which was written under the misapprehension that it was late and that he had only seven days to respond. Mr Carbone did not respond to the email from the President’s Associate advising him that the time provided for in UCPR r 36.16 was 14 days, but filed a further submission, once more signed by Mr Jemmott, on 16 June 2023. The submission is six single-spaced pages with four pages of annexures relating to stamp duty. It replicates the entirety of the earlier submission, but inserts additional paragraphs.

We pass over the length of the submission, and the fact that it purports to be authored by Mr Jemmott rather than the appellant’s solicitor. Save for two points, the submission is directed to matters other than those bearing on the question of indemnity costs for the period after the hearing of the appeal. The submission is mostly directed to an issue which arose during the hearing concerning the compliance with an undertaking to pay stamp duty. The submission stated, correctly, that this was not addressed in the Court’s judgment. It was not addressed because it was not necessary to do so.

The exceptional paragraphs which do purport to deal with the discretion as to costs of the appeal are difficult to summarise. It is best to reproduce paragraphs 2 and 13 verbatim:

Nothing in those paragraphs (or anywhere else in the submission) provides any explanation for the weeks spent attempting to assemble white folders to include the basic documents which should have been included by the appellant prior to the hearing of the appeal and which, when belatedly they were provided, failed to include the portions of evidence which had been rejected or admitted only on a limited basis. There is no reason to depart from the costs order made on 2 June 2023.

Shortly after receiving the second submission from the appellant, the respondents were contacted by the Court stating that no response was required and listing the matter for judgment.

The Court’s order is that the application to vary the costs order made on 2 June 2023 is refused.