Cappello v Homebuilding Pty Ltd

1. [1]

   This decision concerns an application for summary judgment made by the first respondent in the matter with respect to a judicial review application filed in this Court by the applicants. The judicial review application relates to a decision by Abadee DCJ in the District Court to authorise the Sheriff to enter premises owned by the applicants for the purpose of taking possession of goods under a writ of execution. It is common ground that that order was made pursuant to s 135 of the Civil Procedure Act 2005 (NSW) (CPA). The order was made in the context of attempts by the first respondent to enforce costs assessments it has obtained against the applicants.

2. [2]

   The second respondent in the judicial review application is the District Court, and the third is described as the Office of the Sheriff of New South Wales. Each of those parties has filed a submitting appearance. For clarity, I shall refer to the first respondent in this case (being the applicant on the motion) as the “defendant”, and to the applicants in the case as the “plaintiffs”. Doing so reflects their respective positions in the original litigation which led to the costs orders, then the costs assessments, which underlie the issue in dispute before me.

3. [3]

   The defendant’s application for summary judgment is made pursuant to r 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), which provides:

4. [4]

   The principles governing a summary judgment application are well-settled. The Court has power to dismiss a claim at an interlocutory stage of the proceedings if the claim is clearly untenable. The plaintiffs cited extensive authority to the effect that there is a substantial threshold of persuasion required to make out a basis for such a judgment. It suffices to note that application of the rule requires a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way: see eg Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 at [57]; Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256 at [44]-[46]; Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 at [24]. That being said, “[a]rgument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed”: General Steel Industries Inc v Commissioner for Railway (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 130. In fact, oral argument in this case was very brief.

5. [5]

   Judicial review of a decision of a judge of the District Court is assigned to this Court by s 48 of the Supreme Court Act 1970 (NSW). An application for summary dismissal of a proceeding in this Court may be determined by one member of the Court, as s 46(1)(b) of that Act authorises a judge of appeal “to dismiss an appeal or other proceeding for want of prosecution or for other cause specified in the rules”. Summary dismissal on the grounds set out in r 13.4 is a cause specified in the rules. And the reference to “other proceeding” encompasses an application for judicial review: note Pi v Zhou [2016] NSWCA 24 at [7]-[8].

6. [6]

   Applications for summary dismissal should not lightly be granted. Nor should they lightly be sought. That is especially so in judicial review applications. Generally such cases do not involve cross-examination and are determined on the documents. An application for summary dismissal in such a case will often involve arguments of much the same kind and length as would be involved in the hearing of the judicial review application itself. Yet the respondent seeking dismissal must meet the high threshold to make out summary dismissal.

7. [7]

   There are also reasons militating against seeking or granting summary dismissal in this Court: note Boensch v Transport for NSW [2024] NSWCA 86 at [18]-[20]. That being said, summary dismissal has been granted in this Court from time to time, for instance where the appeal was incompetent because the litigant needed leave to appeal (eg Cavar v Department of Human Services [2016] NSWCA 195) or because the relief sought was misguided because it is not open to seek judicial review of the decision of a Supreme Court judge (Pi v Zhou).

8. [8]

   For the reasons given below, my view is that the plaintiffs’ judicial review application is indeed untenable. The case turns on an issue of law; there are no relevant factual disputes. I have considered whether I should nevertheless decline relief on the basis that in all the circumstances, including considerations under ss 56-60 of the CPA, it is more appropriate to allow the judicial review proceeding to take its ordinary course. However, because I consider the application to be made out with the requisite high degree of certainty, and a summary dismissal order may have the effect of quelling the current dispute, I will grant the order sought. The application for judicial review will be summarily dismissed, with the plaintiffs ordered to pay the costs of the defendant on an indemnity basis.

9. [9]

   In what follows I first set out the complicated context in which the issue arises before turning to consider the merits of the application.

Context

1. [10]

   The origin of the current proceeding lies in a building dispute. The plaintiffs had contracted with the defendant, a construction company previously named Hammond & Simonds NSW Pty Ltd, to undertake some building works. The plaintiffs claimed the works were defective and commenced proceedings in the Supreme Court in July 2019 against the defendant and a director of that company. In August 2019 the defendant filed a cross-claim for amounts owing under the contract.

2. [11]

   Justice Ball delivered a judgment in August 2020 which, in the net result, ordered the plaintiffs to pay the defendant $76,510.68: Cappello v Hammond & Simonds NSW Pty Ltd [2020] NSWSC 1021. His Honour subsequently ordered the plaintiffs to pay costs of the defendant and its director on an indemnity basis: Cappello v Hammond & Simonds NSW Pty Ltd (No 2) [2020] NSWSC 1199.

3. [12]

   The plaintiffs appealed the decisions of Ball J. In April 2021 this Court allowed the appeal in part: Cappello v Hammond & Simonds NSW Pty Ltd [2021] NSWCA 57. The Court reduced the amount the plaintiffs were required to pay to the defendant to $50,097.32. The appeal was otherwise dismissed, with the respondents ordered to pay 75% of the appeal costs of the defendant and its director. The Court did not alter Ball J’s order that the costs at first instance be paid by the plaintiffs on an indemnity basis.

4. [13]

   The defendant then filed a costs assessment application with respect to its costs of the Supreme Court proceedings and Court of Appeal proceedings. The statutory scheme relating to assessment of legal costs is complex. This Court has recently summarised aspects of the scheme in Fong BHNF Fong v Weller [2024] NSWCA 46 at [15]-[30].

5. [14]

   A costs assessor issued a “Certificate of Determination of Costs” with respect to the Court of Appeal proceedings for $32,944.13 on 13 December 2021, and such a Certificate with respect to the Supreme Court proceedings for $155,746.44 on 23 December 2021. Both of those determinations included allowances for interest and filing fees. The certificates were issued pursuant to s 70(1) of the Legal Profession Uniform Law Application Act 2014 (NSW) (LPULAA). Separate certificates were issued for the costs incurred by the costs assessor and the Manager of Costs Assessment.

6. [15]

   In January 2022 the plaintiffs filed an application for review of the costs assessor’s determinations in favour of the defendant. In March 2022 a review panel issued certificates upholding the costs assessor's determinations, acting pursuant to s 85 of the LPULAA.

7. [16]

   The defendant filed the two certificates in its favour in the Local and District Courts, acting pursuant to s 70(5) of the LPULAA. As a consequence, on 1 April 2022 the following orders were recorded and notified to the parties:

   1. (1)

      The District Court recorded an “order”, also described as a “Judgment”, for the “claim amount” of $164,290.29, which related to the costs for the Supreme Court Proceedings (District Court Order).

   2. (2)

      The Local Court also recorded an “order”, again also described as a “Judgment”, for the amount of $38,823.22 with respect to the Court of Appeal proceedings (Local Court Order).

8. [17]

   The reason why these amounts were somewhat greater than the amounts recorded in the certificates was not explained, but was also not the subject of any relevant dispute.

9. [18]

   Shortly thereafter the plaintiffs appealed the decisions of the review panel to the District Court, pursuant to s 89 of the LPULAA. In December 2022 Gibson DCJ dismissed the appeal: Cappello v Homebuilding Pty Ltd [2022] NSWDC 725. In March 2023, her Honour made an order for the plaintiffs to pay the defendant’s costs by way of a gross sum costs order in the amount of $26,449.40: Cappello v Homebuilding Pty Ltd (No 2) [2023] NSWDC 54.

10. [19]

    The plaintiffs then sought judicial review of Gibson DCJ’s decision in this Court. That application was rejected in May 2023: Cappello v HomeBuilding Pty Ltd [2023] NSWCA 109. The plaintiffs were ordered to pay the costs of the defendant and its director on an indemnity basis.

11. [20]

    In the meantime, there had also been litigation in federal courts with respect to an attempt by the defendant to have the plaintiffs declared bankrupt. That attempt was ultimately unsuccessful, but led to a further costs dispute, determined substantially against the plaintiffs by Katzmann J in the Federal Court: Cappello v HomeBuilding Pty Ltd (No 2) [2023] FCA 1205. It is not necessary to say anything more about that line of litigation as it is not involved in the dispute before this Court.

12. [21]

    At the situation stands, relevantly, the defendant has obtained two court orders crystallising the plaintiffs’ liabilities to it for costs: the District Court Order for payment of $164,290.29 with respect the Supreme Court Proceedings, and the Local Court Order for $38,823.22 with respect to the first Court of Appeal proceedings. Those orders were based on assessments by a costs assessor which were registered in the District and Local Courts. Those costs assessments had withstood the plaintiffs’ unsuccessful review application to a review panel, appeal to the District Court determined by Gibson DCJ, and judicial review application of her Honour’s decision in this Court. The assessments have been well and truly examined, and upheld.

13. [22]

    In September 2022 the defendant sought to enforce the Local Court Order by way of a writ of levy of the plaintiffs’ property. In October 2022 a temporary stay of enforcement was granted, no doubt because of the impending District Court appeal. That stay was extended on 30 November 2022. On 6 September 2023, some time after this Court’s rejection of the judicial review application with respect to Gibson DCJ’s decision, the Local Court made orders on the application of the defendant which lifted the stay of enforcement. After the stay had been lifted in November 2023 the defendant sought to repeat the process it had undertaken over a year earlier, and sought to enforce the Local Court Order by way of a writ for levy of property.

14. [23]

    The defendant had also sought to enforce the District Court Order in September 2022 by way of a writ of levy of property. The result was much the same. In November 2022 the plaintiffs obtained an order in the District Court granting a stay of execution of the District Court Order. That stay was lifted in August 2023 by Abadee DCJ: Homebuilding Pty Ltd v Cappello [2023] NSWDC 338. His Honour there noted that it appeared that the plaintiffs “have exhausted their avenues to appeal the decisions which led to the making of the” District Court Order (at [24]). The defendant then sought to enforce the District Court Order by way of a writ for levy of property filed on 10 November 2023.

15. [24]

    On 4 December 2023 the defendant’s lawyers received a letter from the NSW Sheriff's Office advising that an execution of the writ (seemingly with respect to the District Court Order) was attempted on 4 December 2023 at the plaintiffs’ address, however the Sheriff officers were refused entry to the property by Mrs Cappello. On 14 December 2023 the defendant filed a motion seeking an order pursuant to s 135(2)(a) of the CPA authorising the Sheriff to enter the plaintiffs’ premises for the purpose of taking possession of goods under a writ of execution.

16. [25]

    On 12 February 2024 Abadee DCJ granted the defendant’s motion with an order authorising the Sheriff to enter identified premises of the plaintiffs for the purpose of taking possession of goods under a writ of execution. It is not disputed that the order was made pursuant to s 135 of the CPA. It is this order which is the subject of challenge in this Court.

17. [26]

    The plaintiffs’ summons for judicial review in this Court seeks the following orders:

18. [27]

    The only ground of review identified in the summons is that “the orders made were made without jurisdiction”. The defendant complains, reasonably, that this does not properly identify the basis for the plaintiffs’ judicial review challenge, contrary to the requirement in r 59.4(c) of the UCPR that such a summons must state “with specificity” the grounds on which the relief is sought. However, I would not summarily dismiss the summons for that reason. In any event, the basis of the plaintiffs’ challenge does emerge from the 11 page written submission which they have filed in answer to the defendant’s application for summary dismissal. Those submissions echo points made by them in a brief written submission apparently provided to Abadee DCJ. The defendant had earlier filed a four page written submission in support of its motion.

19. [28]

    The defendant’s motion seeks that the plaintiffs’ summons seeking judicial review in this Court be dismissed pursuant to r 13.4(1)(a), (b) or (c) of the UCPR, in essence (leaving aside the complaint about inadequate specificity) on the basis that the plaintiffs’ challenge is so obviously untenable that no reasonable cause of action is disclosed for the purposes of the rule.

20. [29]

    At the hearing of the motion Mr Cappello represented himself. Mrs Cappello was not present, but Mr Cappello informed me – and I accept – that she had authorised him to speak on her behalf. Counsel for the defendant made relatively brief oral submissions. Mr Cappello indicated he wished to rely on his written submissions. That was his answer, too, when I asked him certain questions about the nature and consequences of his position in the judicial review application.

Consideration

1. [30]

   Section 135 of the CPA provides as follows:

2. [31]

   The plaintiffs’ argument is relatively simple. They say that the reference in s 135(1) to “its judgment and orders” is a reference to judgments and orders made by the court in question itself. Here, they argued, there had been no such judgment or order here by the District Court, merely a registration of (relevantly) the certificate of determination of costs with respect to the Supreme Court proceedings. The argument was said to be founded on certain things said in Frumar v Owners of Strata Plan 36957 [2010] NSWCA 172.

3. [32]

   The plaintiffs’ argument is wrong. To begin with, in fact the evidence discloses that an order has been entered by the District Court, being the District Court Order identified above at [16(1)]. There is thus an order of the Court which founds the direction as to enforcement subsequently made pursuant to s 135. That being said, the core problem with the plaintiffs’ argument is deeper than that point of fact.

4. [33]

   Section 70 of the LPULAA relevantly provides as follows in relation to certificates of costs assessors determining costs:

5. [34]

   Subsections (4) and (5) of s 70 illustrate two different, familiar statutory techniques for recovery of sums payable pursuant to a statutory scheme. The first is to provide that the sum may be claimed in debt. That route requires the filing of proceedings in a court of competent jurisdiction to pursue the claim. The second technique is more direct. It bypasses the need to start new proceedings. By allowing the certificate to be registered in a court of competent jurisdiction, which is then “taken to be a judgment of that court for the amount of unpaid money”, the claimant is thence able to jump straight to the enforcement stage.

6. [35]

   That second technique is neither new nor unique to this State. For instance, in this State there is currently a not dissimilar provision in s 78 of the Civil and Administrative Tribunal Act 2013 (NSW) (and see previously Administrative Decisions Tribunal Act 1997 (NSW), s 82A) along with s 182 of the Industrial Relations Act 1996 (NSW). And a broadly similar technique is employed, for example, in s 6 of the Foreign Judgments Act 1991 (Cth).

7. [36]

   Section 70(5) of the LPULAA itself is worded in almost identical terms to provisions in the two previous statutory regimes dealing with costs in this State, being ss 208J(3) and 208KF(2) of the Legal Profession Act 1987 (NSW) and s 368(5) of the Legal Profession Act 2004 (NSW). When seeking to emphasise the ongoing authority of the decision in Frumar, the plaintiffs themselves submitted (correctly) that “[t]here is no basis to distinguish section 70(5) from section 368(5)”.

8. [37]

   The very point of this technique is to facilitate enforcement of the determination in question by treating it as though it were a judgment of the relevant court. Doing so enables the mechanisms available to enforce such judgments to be deployed in aid of enforcement of the determination, without the need for the claimant to commence separate proceedings for debt. So much is reflected in s 133 of the CPA:

9. [38]

   The section is expressly addressed to issues of enforcement, in that it provides a judgment or order may not be enforced until entered in accordance with the uniform rules (noting that r 36.10 of the UCPR addresses how that is to be done). The section sets a gateway for enforcement. It goes on to state that it extends to adjudications or awards which may be filed or registered under any other Act or law, including of other jurisdictions. Thus the gateway provision for enforcement makes clear that the gateway itself – and thus the enforcement provisions more generally – extends to the type of registration scheme at issue here.

10. [39]

    The plaintiffs’ argument cannot stand in the face of these statutory provisions. Were the argument correct then it is difficult to see how costs determinations (amongst other things) could ever be enforced. That would defeat the clear intent of, relevantly, s 70 of the LPULAA and s 133 of the CPA. I put this point to Mr Cappello, who in response first suggested that “the court that issues the certificate can enforce it”. When I noted that costs certificates are not issued by courts, he fell back to asserting that he relied on his written submissions.

11. [40]

    As for the plaintiffs’ reliance on this Court’s decision in Frumar, not only does that not support their argument, it directly undercuts it. Their written submissions drew attention first to the judgment of Giles JA who, addressing the predecessors of s 70(5), spoke of “so-called judgments”, adding that “while reference to them as judgments is convenient … they take their force from the statute and are not judgments of the court”. His Honour was actually in dissent, but that does not undermine the force of his point, which was to the effect that although a registered costs certificate was to be treated as a judgment that did not mean there had actually been a judgment of the court in the sense of the court having decided something.

12. [41]

    The same point was made by Handley AJA, with whom Macfarlan JA agreed. His Honour relevantly said this (emphasis added):

13. [42]

    These passages indicate that in his Honour’s view a registered costs determination is not itself a judgment of the relevant court (although it is taken to be such a judgment), and that has certain consequences, but it may be enforced as though it were. One of the consequences of not in fact being a judgment of the relevant court is that registration cannot be appealed as though it were a court judgment: ibid at [50]; Doyle v Hall Chadwick [2007] NSWCA 159 at [47]; Fordyce v Leung [2021] NSWCA 262 at [17].

14. [43]

    Some of what was said in Frumar has subsequently been doubted, and the wording of r 36.10 was amended in response to the question raised about its validity: see Trad v Harbour Radio Pty Ltd [2016] NSWCA 80 at [42]-[44]. Basten JA, speaking for the Court, there said the following (citations omitted):

15. [44]

    It is not necessary here to examine what, if anything, is the difference between viewing the provision as one that involves deeming or is definitional. Nothing in Trad undermined the conclusion expressed in Frumar that registered costs determinations were enforceable as though they were judgments of the relevant court; note further Khoury v Hiar [2006] NSWCA 47 at [44].

16. [45]

    The situation was summarised by Beazley P, Meagher and Leeming JJA in Calandra v Murden [2015] NSWCA 231, the year before Trad was decided, speaking of the predecessor to s 70(5):

17. [46]

    It is implicit in this passage that registered costs assessments may be enforced as though judgments of the relevant court, pursuant to the statutory scheme, the CPA and the UCPR. The enforcement mechanisms available include orders made pursuant to s 135 of the CPA, such as that which the plaintiffs seek to challenge in this proceeding.

18. [47]

    In sum, the plaintiffs’ argument is contrary to the statutory scheme; would defeat the plain intent of the statutory scheme; is undermined by the very authority which they cite in support; and is inconsistent with other, unchallenged authority of this Court. It is entirely untenable.

Conclusion and orders

1. [48]

   The proceeding should be dismissed because it is discloses no reasonable cause of action, such as to satisfy r 13.4(b) of the UCPR.

2. [49]

   The defendant sought indemnity costs on two bases. First, it relied on a Calderbank offer, sent by letter dated 7 March 2024 and expressed to be open till 5pm on 18 March 2024, by which it made a “walk away” offer that the summons be dismissed with no order as to costs. The offer was rejected in an email from Mrs Cappello sent on 18 March 2024 which stated simply that “[t]he plaintiffs do not agree with your view of the prospects of the proceedings”.

3. [50]

   The defendant’s offer was made in the context of an application for summary dismissal having been foreshadowed at a directions hearing on 4 March 2024. The letter containing the offer was marked “without prejudice save as to costs”; stated that it was made in accordance with Calderbank principles, and that the letter would be relied on in support of an application for indemnity costs; was made in clear and precise terms capable of being accepted; stated the time for which the offer was open; that period (of some 11 days) was reasonable in the circumstances; and gave relatively detailed reasons as to why the plaintiffs’ claim was untenable.

4. [51]

   A walk away offer may be capable of constituting a genuine offer of compromise, although the claim or defence would have to approach something of the character of being frivolous or vexatious for that to be the case: Leach v Nominal Defendant (QBE Insurance) (Aust) Limited (No 2) [2014] NSWCA 391 at [50]-[51]. This is such case, for the reasons set out above. In the circumstances of this case the offer constituted a genuine offer of compromise and it was unreasonable of the plaintiffs not to accept it.

5. [52]

   The defendant also sought indemnity costs on the basis of unreasonable conduct by the plaintiffs in continuing to challenge the costs determinations. It noted that this Court had ordered indemnity costs essentially on that basis in Cappello v Homebuilding Pty Ltd [2023] NSWCA 109. Mitchelmore JA, speaking for the Court, there said that the plaintiffs “attempted what was, in effect, a third appeal, in circumstances where the costs as assessed well exceeded the amount of money that prompted the proceedings in the Supreme Court” (at [51]). The defendant said here:

6. [53]

   It is not necessary for me to conclude that all of the plaintiffs’ prior challenges of one kind or another were highly technical and hopeless. It suffices to say that the filing of this application for judicial review was an unreasonable attempt to avoid enforcement of the costs assessment, in circumstances where the plaintiffs have had more than adequate opportunity to challenge the underlying bases of the assessments (as summarised above at [21]).

7. [54]

   In all the circumstances I consider it appropriate to award costs to the defendant on an indemnity basis.

8. [55]

   Finally, for completeness, I note that pursuant to r 51.45(2) of the UCPR the plaintiffs are appropriately described as “applicants” in the current proceedings in this Court.

9. [56]

   The orders of the Court will be as follows:

   1. (1)

      The applicants’ summons seeking judicial review is dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules.

   2. (2)

      The applicants are to pay the first respondent’s costs of the proceedings on an indemnity basis.