Owners - SP 58631 v Caporale [2011] FCA 109

FEDERAL COURT OF AUSTRALIA

Owners – SP 58631 v Caporale [2011] FCA 109 Citation: Owners – SP 58631 v Caporale [2011] FCA 109

Appeal from: Caporale & Anor v The Owners Strata Plan 58631 [2010] FMCA 346

Parties: THE OWNERS – SP 58631 v TOMMASO CAPORALE THE OWNERS – SP 58631 v GIUSEPPE CAPORALE

File numbers: NSD 688 of 2010 NSD 689 of 2010

Judge: REEVES J

Date of judgment: 15 February 2011

Catchwords: PRACTICE AND PROCEDURE – application for leave to appeal from an interlocutory decision of the Federal Magistrate – leave required under s 24(1A) of the Federal Court Act 1976 (Cth) – whether substantial injustice can be occasioned when dispute does not involve a question as to a substantive right – whether the Owners Corporation has a fiduciary duty on behalf of members of a Strata Plan to recover costs under s 80 of the Strata Schemes Management Act 1996 (NSW) – consideration of a situation where costs incurred out of all proportion to initial recoverable debt – whether granting leave to appeal is contrary to overarching purpose of disposing of litigation inexpensively in s 37M of the Federal Court Act (1976) (Cth) HELD that an action brought to recover costs after the substantive issue of litigation has been disposed of does not give rise to a substantial injustice if leave to appeal is denied where costs incurred and to be incurred are out of proportion to the costs sought to be recovered – there is no duty on the owners corporation to recover the costs of collecting contributions – continuing proceedings solely to recover costs is inconsistent with overarching purpose of disposing of litigation quickly, efficiently and inexpensively