HomeBuilding Pty Ltd (formerly known as Hammond & Simonds Pty Ltd ABN 61 162 746 929) v Cappello & Anor [2023] NSWDC 338

District Court New South Wales

Medium Neutral Citation: HomeBuilding Pty Ltd (formerly known as Hammond & Simonds Pty Ltd ABN 61 162 746 929) v Cappello & Anor [2023] NSWDC 338 Hearing dates: 28 August 2023 Date of orders: 28 August 2023 Decision date: 28 August 2023 Jurisdiction: Civil Before: Abadee DCJ Decision: See paragraph 24 Catchwords: CIVIL PROCEDURE – application to lift stay – where judgment debtor made no appearance – application granted Legislation Cited: Civil Procedure Act 2005 (NSW) ss 67, 125, 135 Uniform Civil Procedure Rules 2005 (NSW) r 36.17 Cases Cited: Cappello v Hammond & Simons NSW Pty Ltd [2020] NSWSC 1021 Cappello v Hammond & Simons NSW Pty Ltd [2021] NSWCA 57 Cappello v Hammond & Simons NSW Pty Ltd (No.2) [2020] NSWSC 1199 Cappello v HomeBuilding Pty Ltd [2022] NSWDC 725 Cappello v HomeBuilding Pty Ltd [2023] NSWCA 109 Cappello v HomeBuilding Pty Ltd (No.2) [2023] NSWDC 54 Texts Cited: Nil Category: Procedural rulings Parties: HomeBuilding Pty Ltd (formerly known as Hammond & Simonds Pty Ltd ABN 61 162 746 929) (Judgment creditor) Rosario Cappello (Judgment debtor 1) Maria Cappello (Judgment debtor 2) Representation: Solicitors: Mr M Anne for the Judgment creditor No appearance for the Judgment debtors File Number(s): 2022/00093495 Publication restriction: Nil

JUDGMENT

Background 1. This proceeding is part of a long running series of disputes between the parties in different Courts. 2. On 9 January 2019, Mr Rosario and Mrs Maria Cappello (the Cappellos) commenced a proceeding in the Supreme Court of New South Wales against an entity, then known as Hammond & Simonds NSW Pty Ltd, but now known as HomeBuilding Pty Ltd (hereafter "HomeBuilding"), in which the Cappellos sought damages against HomeBuilding (and its director, Mr John Re) (the 'Supreme Court proceeding'). The proceeding arose from a construction contract in which HomeBuilding agreed to undertake renovations at the Cappellos' residence in Haberfield entered into on 1 September 2017. HomeBuilding had terminated that contract following the Cappellos' non-payment of part of an invoice and sought to recover the unpaid part of the invoice. The Cappellos' cross-claimed against HomeBuilding (and Mr Re) for damages for delay, certain defective works and delay damages. 3. On 7 August 2020, HomeBuilding obtained a monetary judgment in the Supreme Court proceeding and the proceeding against Mr Re was dismissed (Cappello v Hammond & Simons NSW Pty Ltd [2020] NSWSC 1021 (Ball J). Ball J subsequently ordered that Mr and Ms Cappello pay HomeBuilding and Mr Re's costs on an indemnity basis (Cappello v Hammond & Simons NSW Pty Ltd (No.2) [2020] NSWSC 1199). 4. The Cappellos appealed, and that appeal partly succeeded: the quantum of the judgment in HomeBuilding's favour was reduced; although the appeal was otherwise dismissed (Cappello v Hammond & Simons NSW Pty Ltd [2021] NSWCA 57). The Cappellos were ordered to pay 75% of HomeBuilding and Mr Re's costs of appeal. The costs order at first instance remained undisturbed. 5. HomeBuilding and Mr Re prepared costs assessment of the Supreme Court proceeding. A costs assessor issued a certificate for determination in their favour in the sum of $157,940.94, representing a determination of the costs and the assessment of the costs. The Cappellos applied for review, however, a Costs Review Panel affirmed the assessor's determinations. 6. HomeBuilding and Mr Re registered the certificates of determination on costs and on 1 April 2022, this Court ordered judgment in their favour against the Cappellos for the sum of $164,290.29. (the 'District Court Judgment') 7. On 13 September 2022, HomeBuilding and Mr Re sought to enforce the District Court judgment entered in this Court on 1 April 2022 by obtaining the issue of a writ for levy of property. On 27 October 2022, officers from the Burwood Sheriff's Office attended the Cappellos' home for the purpose of executing the writ. 8. On or about 28 October 2022, the Cappellos applied to this Court, ex parte, for a stay. Order 1 of the notice of motion read as follows: "1. An urgent exparte (sic) stay be granted in relation to the judgment that was entered in these proceedings upon the filing of the Certificate of Determination of costs by the defendant." 1. This was a reference to the District Court Judgment. 2. The Court's online records show that on 23 November 2022, his Honour Judge Fitzsimmons SC exercised the Court's power under s 125 of the Civil Procedure Act 2005 (NSW) to stay the execution of the District Court Judgment until further order of the Court. The reference to s 125 is a misnomer. Section 125 of the Civil Procedure Act appears in subdivision 3 which relates to enforcement of judgments by garnishee order. The Court's power to stay a judgment is under s 135 of the Civil Procedure Act. (Other sources of power include s 67 of the Civil Procedure Act). Nevertheless, the plain intention of the order made on 23 November 2022 was to stay execution (by whatever means of enforcement) of the District Court Judgment so as to enable the Capellos to exhaust rights of appeal or review from the decisions which led to the making of the District Court Judgment. I would also add that to the extent that the order erroneously refers to s 125, rather than s 135 of the Civil Procedure Act, the reference can be excised under r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW). 3. On 9 December 2022, Gibson DCJ dismissed the Cappellos' appeal from the decisions of the costs review panel (Cappello v HomeBuilding Pty Ltd [2022] NSWDC 725). In a separate judgment, her Honour ordered the Cappellos to pay HomeBuilding's costs by way of a gross sum, although that particular order was stayed for a short time (Cappello v HomeBuilding Pty Ltd (No.2) [2023] NSWDC 54). 4. The Cappellos then filed a Summons seeking judicial review of Gibson DCJ's decision on 9 December 2022 in the Court of Appeal. On 26 May 2023, the Court of Appeal dismissed the summons (Cappello v HomeBuilding Pty Ltd [2023] NSWCA 109). 5. On 1 August 2023, Malik Anne, of the law firm Adams & Partners Lawyers, the solicitors for HomeBuilding and Mr Re, emailed Rosario Cappello. In the email, Ms Anne referred (relevantly) to the stay granted by this Court on 23 November 2022. Mr Cappello was asked whether he consented to the stay being lifted and, in lieu of any (satisfactory) response, foreshadowed that HomeBuilding would apply to this Court (relevantly) to lift the stay and for the costs of any such application.