Court of Appeal
New South Wales
Case Title: Barlaw Pty Limited t/as Barrak Lawyers v Chikal Pty Limited Medium Neutral Citation: [2011] NSWCA 283 Hearing Date(s): 5 September 2011 Decision Date: 05 September 2011 Jurisdiction: Before: Campbell JA; Macfarlan JA
Decision: Application for leave to appeal dismissed with costs.
[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: APPEAL - leave to appeal - costs - where comparatively small amount of costs - where complex factual background - where no question of general public interest - where areas of factual dispute not resolved - where new argument raised in oral submissions
Legislation Cited: Cases Cited: Texts Cited: Category: Principal judgment Parties: Barlaw Pty Limited t/as Barrak Lawyers (Applicant)
Chickal Pty Limited (Respondent)Representation - Counsel: Counsel
M A Robinson (Applicant)
P J Bambagiotti (Respondent)- Solicitors: Solicitors
Barrack Lawyers (Applicant)
Beston Macken & McManis (Respondent)File number(s): 2010/359687 Decision Under Appeal - Court / Tribunal: Supreme Court - Before: Slattery J - Date of Decision: 30 March 2011 - Citation: Chikal Pty Limited v Youssef El Bayeh [2011] NSWSC 230 - Court File Number(s) 2010/359687 Publication Restriction: Nil
Judgment
CAMPBELL JA delivering the judgment of the Court : In this matter the Court has come to the view that the application for leave to appeal on a question of costs alone should be refused. The costs in question are of an application for payment out of money in court.
There is a comparatively small amount of costs involved, likely to be less than $17,000 for the total costs of both sides to the dispute.
The dispute about costs arises from litigation of Byzantine complexity. Unravelling the factual background that led to the case would involve considerable complexity on the appeal.
Not all of the matters that are relevant to whether an appeal would be likely to succeed were put before us on the application for leave. The application relates to an order for costs that was made concerning hearings that occurred on, amongst other dates, 22 November 2010 and 15 December 2010. We were not provided with a transcript of the hearing of those dates, nor of the reasons for a decision that the primary judge made on 22 November 2010 requiring the payment out of certain of the monies that were in Court to the applicant. That makes it hard for the applicant to show it would have reasonable prospects of success if leave were granted.
The question of costs that is involved is not one that involves any question of general public interest.
As well, there are some areas of factual dispute that have not been resolved about whether the payment out that is involved in the case was consented to.
Further, in the course of the argument an attempt was made to raise for the first time a procedural fairness ground that had not been referred to in the draft notice of appeal or adverted to in the submissions that were filed.
For all of these reasons it is not an appropriate case in which to grant leave.
The order of the Court is that the application for leave to appeal is dismissed with costs.
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- AGLC
- Barlaw Pty Limited t/as Barrak Lawyers v Chikal Pty Limited [2011] NSWCA 283
- Case
- [2011] NSWCA 283
- Decision Date
CaseChat Overview and Summary
The Court was required to determine whether to grant leave to appeal on a question of costs alone. Specifically, the Court considered the amount of costs involved, the complexity of the underlying factual background, the absence of any question of general public interest, unresolved factual disputes regarding consent to a payment out, and the introduction of a new argument concerning procedural fairness during oral submissions.
The Court reasoned that leave to appeal should be refused due to several factors. The costs in question were comparatively small, estimated to be less than $17,000 in total for both parties. The factual background was described as being of "Byzantine complexity," making it difficult to unravel on appeal. Furthermore, not all relevant matters were presented to the Court, and crucial documents such as transcripts of the original hearings and the primary judge's reasons were not provided, hindering the applicant's ability to demonstrate reasonable prospects of success. The Court also noted the lack of public interest in the costs issue and the attempt to raise a new procedural fairness argument for the first time in oral submissions, which had not been foreshadowed in the draft notice of appeal or filed submissions.
Consequently, the application for leave to appeal was dismissed with costs.
Orders
Orders of the court
Application for leave to appeal dismissed with costs.
[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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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