Hometeam Constructions Pty Ltd v McCauley (No 2) [2007] NSWCA 278

New South Wales Court of Appeal

CITATION: Hometeam Constructions Pty Ltd v McCauley (No 2) [2007] NSWCA 278

HEARING DATE(S): On the papers

JUDGMENT DATE: 10 October 2007

JUDGMENT OF: Ipp JA; Tobias JA; McColl JA

DECISION: 1. The claimant to have a certificate under the Suitors' Fund Act 1951 in relation to the costs of the appeal if otherwise qualified. 2. Each party to bear their own costs of the Notice of Motion.

CATCHWORDS: COSTS - Indemnity certificate under Suitors' Fund Act 1951

LEGISLATION CITED: Suitors' Fund Act 1951

CASES CITED: Hometeam Constructions Pty Ltd v Fiona McCauley as Administrator for the Estate of the Late Luke McCauley [2005] NSWCA 303

PARTIES: Hometeam Constructions Pty Ltd - Appellant Fiona McCauley as Administrator for the Estate of the Late Luke McCauley - Respondent

FILE NUMBER(S): CA 40587 of 2003

COUNSEL: M L D Einfeld QC and A J L Ogborne - Appellant E M Olsson SC - Respondent

SOLICITORS: Bruce & Stewart Commercial Practice - Appellant Deacons - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 10346/02

LOWER COURT JUDICIAL OFFICER: Murrell DCJ

LOWER COURT DATE OF DECISION: 17 June 2003

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40587/03 DC 10346/02

IPP JA TOBIAS JA McCOLL JA

Wednesday 10 October 2007 Hometeam Constructions Pty Ltd v Fiona McCauley as Administrator for the Estate of the Late Luke McCauley (No 2) Judgment 1 THE COURT: The Court delivered judgment in this matter on 7 September 2005: Hometeam Constructions Pty Ltd v Fiona McCauley as Administrator for the Estate of the Late Luke McCauley [2005] NSWCA 303. It allowed the appeal and set aside the verdict for the respondent on the claim and all orders including costs orders made by Murrell DCJ. The matter was remitted to Murrell DCJ to quantify the loss or damage suffered by the appellant and to determine all questions of costs of the claim. There were also orders dealing with an Amended Cross-Claim, but it is unnecessary to refer to those. The respondent was ordered to pay the costs of and incidental to the appeal. 2 The principal judgment concerned the proper construction of a Notice of Default and Termination under a building contract. The primary judge had concluded that the claimant's late husband had properly terminated the building contract on the grounds that the appellant had failed to proceed with the building works "regularly and with due diligence and without delay" and had awarded the claimant damages. 3 In the principal judgment the Court held that the primary judge had erred in concluding the claimant was entitled to serve the Notice of Termination. 4 By Notice of Motion filed on 6 July 2007 the claimant (the respondent to the appeal) has sought an indemnity certificate pursuant to s 6 of the Suitors' Fund Act 1951 and an order that each party bear their own costs of the Motion. The opponent (the appellant) consents to the orders sought. 5 The Motion was supported by an affidavit which disclosed that the claimant had fulfilled all her obligations in accordance with the orders of the Court of Appeal by paying the opponent total costs in the sum of $366,733.17 in relation to both the District Court proceedings and the Court of Appeal proceedings. 6 When the Motion was brought to the attention of the Court, it enquired, through the Registrar of the Court of Appeal, as to the reason the application had been first made close to two years after the principal judgment.