Supreme Court New South Wales Medium Neutral Citation: Onslow v Cullen (No 2) [2022] NSWSC 1363 Hearing dates: On the papers Decision date: 11 October 2022 Jurisdiction: Common Law Before: Adamson J Decision: Grant a certificate under s 6(1)(a) of the Suitors' Fund Act 1951 (NSW) to the defendants in respect of their costs of the proceedings in this Court. Catchwords: COSTS — Party/Party — Appeals — Suitors' Fund — application for certificate granted Legislation Cited: Home Building Act 1989 (NSW), s 7 Suitors' Fund Act 1951 (NSW), s 6 Cases Cited: Mir Bros Developments Pty Ltd v Atlantic Constructions Pty Ltd (1985) 1 NSWLR 491 Onslow v Cullen [2022] NSWSC 1257 Category: Costs Parties: Adam Onslow (Plaintiff) Gary Cullen (First Defendant) Melanie Cullen (Second Defendant) Representation: Counsel: M Klooster (Plaintiff) M Walsh (Defendants) Solicitors: Mitchell & Shorten Lawyers (Plaintiff) Snelgroves (Defendants) File Number(s): 2021/357289 JUDGMENT 1. On 19 September 2022, I made orders and published reasons in this matter: Onslow v Cullen [2022] NSWSC 1257 (the principal judgment). As no party has asked for a different order, my default order, that the defendants (the owners) pay the plaintiff's (the builder's) costs of the proceedings, stands. 2. The owners have sought a certificate under the Suitors' Fund Act 1951 (NSW). The builder has no interest in this question and does not wish to be heard. Mr Walsh, who appeared for the owners in this Court (but not in the Court below), has filed written submissions in support of the application. 3. This Court has power to grant a certificate under s 6(1)(a) of the Suitors' Fund Act, which relevantly provides: "6 Costs of certain appeals (1) If an appeal against the decision of a court: (a) to the Supreme Court on a question of law or fact, or … succeeds, the Supreme Court may, on application, grant to the respondent to the appeal or to any one or more of several respondents to the appeal an indemnity certificate in respect of the appeal." 1. Section 6(2A) provides that the maximum amount payable from the Suitors' Fund (the Fund) for any one appeal is, relevantly, $10,000. 2. Whether a certificate ought be granted in the present case is a matter of discretion: s 6(5). In Mir Bros Developments Pty Ltd v Atlantic Constructions Pty Ltd (1985) 1 NSWLR 491, Kirby P and Samuels JA outlined the applicable principles that guide the interpretation of s 6. Their Honours identified the purpose of the statute as: "the relief of a party who incurs or becomes liable for costs not through his own decision or conduct but because of some error of law of the court appealed from …" 1. It is necessary to address the grounds of appeal (each of which was made out) and the conduct of the owners' representatives in the Local Court to determine whether the owners (who are bound by the conduct of their legal representatives) played a role in the errors made by the Court below. 2. In respect of ground 1, the owners' counsel argued in the Local Court that the pleaded claim was a claim for breach of contract and not for breach of statutory warranty. I found her Honour's acceptance of that submission to be erroneous, in part because s 7(2)(f) of the Home Building Act 1989 (NSW) (the Act) required the statutory warranty to be included in the contract: see [53]-[58] of the principal judgment. Thus, the owners can be taken to have contributed to her Honour's error by making a submission that failed to have regard to the effect of s 7(2)(f) of the Act. Mr Walsh submitted, on behalf of the owners, that the owners were entitled to make the submissions they did in the Court below because the law was "unsettled" in relation to the question whether the standard form home building contract included all the limitations on enforcement contained in Part 2C of the Act. Having regard to the express terms of s 7(2)(f), I do not regard the law as being "unsettled" since legislation is as capable of making a matter clear as a binding authority, if not more so. 3. In respect of ground 2, the owners' counsel made a concession in the submissions in the Local Court and then appeared to depart from it by arguing that the basis for the builder's claim had not been pleaded (which was not required, having regard to the concession). I consider that his conduct contributed to the error which I found to have been made in the Local Court. 4. Ground 3 alleged a failure to give reasons in two respects. The owners cannot be held to have contributed to this failure. 5. Mr Walsh also submitted that the owners took a "sensible and efficient approach" to the conduct of the appeal by the builder and consented to two amendments to the grounds of appeal "without rancour or prevarication", one of which was resolved by agreement. 6. I consider the question whether a certificate ought be granted to be a finely balanced one. However, I am persuaded that, having regard to her Honour's errors in ground 3(a) and (b) (to which the owners did not contribute) and the owners' efficient conduct of the appeal in this Court (through Mr Walsh), a certificate under s 6(1)(a) of the Suitors' Fund Act ought be granted to the owners. Orders 1. For the reasons given above, I make the following orders: 1. Grant a certificate under s 6(1)(a) of the Suitors' Fund Act 1951 (NSW) to the defendants in respect of their costs of the proceedings in this Court. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 October 2022