Josef & Sons Contracting Pty Limited v Sidney Mabbett bhnf Noelene Apiata & Anor [2007] NSWCA 237

New South Wales Court of Appeal

CITATION: Josef & Sons Contracting Pty Limited v Sidney Mabbett bhnf Noelene Apiata & Anor [2007] NSWCA 237

HEARING DATE(S): 31 August 2007 JUDGMENT OF: Beazley JA at 1; Giles JA at 1; Tobias JA at 1

EX TEMPORE JUDGMENT DATE: 31 August 2007

DECISION: 1. Leave to appeal refused; 2. The claimant is to pay the first opponent's costs of the Summons for Leave to Appeal and such costs as were incurred in the preparation of submissions as if on appeal.

Josef & Sons Contracting Pty Limited (Claimant) PARTIES: Sidney Mabbett bhnf Noelene Apiata (First Opponent) New South Wales Land and Housing Corporation (Second Opponent)

FILE NUMBER(S): CA 40772/06

PW Neil SC; DJ Hooke (Claimant) COUNSEL: AJ Bartley SC; K Pryde (First Opponent) Submitting appearance (Second Opponent)

Edwards Michael Moroney Lawyers (Claimant) SOLICITORS: Carroll & O'Dea Lawyers (First Opponent) McCabe Terrill Lawyers (Second Opponent)

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): SC 12296/04

LOWER COURT JUDICIAL OFFICER: Adams J

LOWER COURT DATE OF DECISION: 6 November 2006; 8 December 2006

LOWER COURT MEDIUM NEUTRAL CITATION: Mabbett v Josef & Sons Contracting Pty Ltd [2006] NSWSC 1452

- 2 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40772/06

BEAZLEY JA GILES JA TOBIAS JA

Ex tempore 31 August 2007 Josef & Sons Contracting Pty Limited v Sidney Mabbett bhnf Noelene Apiata & Anor Judgment 1 THE COURT: The Court has before it a Summons for Leave to Appeal from a decision of Adams J in which his Honour granted the first opponent leave to proceed on his Statement of Claim against the claimant. The Summons also seeks leave to appeal against the costs order that his Honour made in respect of that application. 2 The matter has been listed for hearing before the Court on the basis that the Summons for Leave to Appeal and, if leave is granted, the appeal, will be heard together. To that end, the parties have provided full written submissions as if on appeal and the Court has heard senior counsel for the claimant on the basis of full argument. 3 Having considered the written submissions and having heard full argument from senior counsel for the claimant as if on the appeal, the Court has determined that it is not necessary to hear oral argument from the first opponent and it has determined that the appropriate way in which to deal with this matter is to refuse leave to appeal. 4 The Court is of the opinion that it has not been demonstrated that the trial judge erred in respect of principle, nor has it been demonstrated that there was any error in the manner in which his Honour dealt with the discretion that he was required to exercise in determining whether or not to grant leave to proceed on the Statement of Claim, notwithstanding the expiration of the limitation period. 5 In particular, it has not been demonstrated that his Honour failed to take into account any relevant matter or that the result reached by his Honour was so unreasonable as to contravene the principles stated in House v The King (1936) 55 CLR 499; [1936] HCA 40. 6 Insofar as his Honour's judgment as to costs is concerned, senior counsel for the claimant recognised that his Honour had a wide discretion to exercise in respect of the award of costs on an application of this type. It was submitted, however, that the usual rule in a case such as this, as stated by this Court in Holt v Wynter (2000) 49 NSWLR 128 at 147; [2000] NSWCA 143, was that ordinarily a successful applicant who has allowed himself to get out of time should pay the costs of the application unless the respondent's opposition was wholly unreasonable. The trial judge referred to that principle and considered that even though the claimant's opposition to the application was not unreasonable, there were matters in this case which made it appropriate that some other order ought to be made and in that circumstance ordered that costs were to be costs in the cause. We do not consider that his Honour erred in the exercise of his discretion. 7 The Orders of the Court are as follows: