Cappello v Lyons [2022] NSWDC 258

District Court New South Wales

Medium Neutral Citation: Cappello v Lyons [2022] NSWDC 258 Hearing dates: 11 July 2022 Date of orders: 12 July 2022 Decision date: 12 July 2022 Jurisdiction: Civil Before: Abadee DCJ (as List Judge) Decision: See paragraph 63 Catchwords: PRACTICE AND PROCEDURE – civil – professional negligence suit (solicitor) – alleged negligence in pleading of owners' (plaintiffs') defence to builder's claim based on unpaid invoice for progress payment in a proceeding in the Supreme Court of New South Wales – plaintiffs' application to amend – application to rely upon supplementary evidence from plaintiff – hearing scheduled in just over 5 weeks – consideration of prejudice to both parties in permitting amendments and supplementary evidence Legislation Cited: Civil Liability Act 2002 (NSW) ss 5B, 5O Civil Procedure Act 1995 (NSW) ss 58, 64 Home Building Act 1989 (NSW) Cases Cited: Cappello v Hammond & Simonds NSW Pty Ltd [2021] NSWCA 57 Texts Cited: Nil Category: Principal judgment Parties: R Cappello (plaintiff) J Lyons (defendant) Representation: Counsel: Mr Raine (as agent) for the plaintiff Mr Ng for the defendant

Solicitors: Hall Partners for the plaintiff Yeldham Price O'Brien Lusk for the defendant File Number(s): 2021/00115214 Publication restriction: Nil

REASONS FOR Judgment

Background

The provenance of the dispute 1. This proceeding features a professional negligence suit. It commenced on 23 April 2021. 2. The suit arises from a building dispute between the plaintiffs, Mr and Mrs Cappello (the 'Cappellos'), as owners, and builders who performed renovation works at their home in Haberfield under a construction contract entered into on 1 September 2017. That contract was terminated on 20 November 2018. That dispute was the subject of proceedings in the Equity Division of the Supreme Court of New South Wales (in its Technology and Construction List) commenced in January 2019. Mr and Mrs Cappello claimed damages for defective building work, relying upon warranties under the Home Building Act 1989 (NSW). In August 2019, the builders cross-claimed for a sum representing an unpaid final progress claim (and also claimed on a quantum meruit). 3. At the dates that the Cappellos filed originating process and a defence to the builders' cross-claim, respectively, they were represented by the defendant's firm in this proceeding. But by the time that the Supreme Court proceeding was heard before Ball J in July 2020, the Cappellos represented themselves. Ball J delivered judgment for the builders for a monetary sum in August 2020 and the Cappellos' claim was dismissed. A costs order was made against the Cappellos. An appeal against that decision was allowed, but only to a limited extent, on 14 April 2021. The appeal judgment was published on Caselaw as Cappello v Hammond & Simonds NSW Pty Ltd [2021] NSWCA 57. Although the appeal succeeded in part, the Cappellos were ordered 75% of the builder's costs of the appeal. 4. In the leading judgment of Leeming JA (with whom Macfarlan JA and McCallum JA, as her Honour then was, agreed) it was noted that one basis for the Cappellos' challenge to the decision at first instance was a contention that conditions precedent for the builders' claim in contract, in cll 15.4 and 15.5, were not satisfied. But the Court of Appeal determined that this was a point that was not pleaded in the Cappellos' defence to the builders' cross-claim, nor run by them at trial. It was not without significance, however, that Leeming JA noted that the construction argument regarding cll 15.4 and 15.5 was "not without force" (at [33]).