Blake v Calcorp Pty Ltd [2018] NSWSC 1071

Supreme Court New South Wales

Medium Neutral Citation: Blake v Calcorp Pty Ltd [2018] NSWSC 1071 Hearing dates: On the papers; submissions received 12 June and 4 July 2018 Decision date: 11 July 2018 Jurisdiction: Equity - Technology and Construction List Before: Stevenson J Decision: Defendant not entitled to payment from Suitors' Fund Catchwords: PRACTICE AND PROCEDURE – where defendant obtained summary judgment against plaintiffs in Local Court - appeal from that decision - consent order that appeal be allowed and proceedings be remitted to Local Court - whether defendant should have payment from Suitors' Fund Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW) Suitors' Fund Act 1951 (NSW) Cases Cited: Acquilina v Dairy Farmers' Co-operative Milk Co Ltd (No 2) (1965) 82 WN (Pt 1) (NSW) 531 Mir Bros Developments Pty Ltd v Atlantic Constructions Pty Ltd (1985) 1 NSWLR 491 Category: Principal judgment Parties: Alan James Black (First Plaintiff) Anne May Black (Second Plaintiff) Calcorp Pty Ltd (Defendant) Representation: Counsel: P Tiliakos (Plaintiffs) N Nelson (Defendant)

Solicitors: Herbert Weller Solicitor (Plaintiffs) Malcolm Murray & Associates (Defendant) File Number(s): SC 2017/284428

Judgment 1. Section 6 of the Suitors' Fund Act 1951 (NSW) provides that if an appeal against the decision of a court on a question of law or fact succeeds in this Court, this Court may, on application, grant to the respondent to the appeal an "indemnity certificate" under the Act. The grant of an indemnity certificate entitles the respondent to pay its costs from the Suitors' Fund. 2. The defendant, Calcorp Pty Ltd, seeks such a certificate. 3. Calcorp commenced proceedings in the Local Court of NSW at Penrith against Mr and Mrs Blake. 4. In those proceedings, Calcorp alleged that: 1. it had entered into a construction contract with Mr and Mrs Blake within the meaning of s 4 of the Building and Construction Industry Security of Payment Act 1999 (NSW); 2. it had served on Mr and Mrs Blake a payment claim pursuant to s 13 of that Act; 3. Mr and Mrs Blake had failed to serve a payment schedule within the meaning of s 14 of that Act; and 4. it was entitled to judgment pursuant to s 15(2)(a)(i) of that Act in the sum of $99,613,69. 1. By notice of motion filed on 28 July 2017, Calcorp sought an order striking out Mr and Mrs Blake's defence and cross-claim (relying on s 15(4) of the Building and Construction Industry Security of Payment Act) and summary judgment for the amount claimed. 2. On 24 August 2017 Magistrate Clisdell granted Calcorp the relief it sought in that notice of motion. 3. Mr and Mrs Blake brought an appeal to this Court against that decision. 4. That appeal was listed for hearing before me on 12 June 2018. 5. On 6 June 2018 I was told the appeal had settled and, by consent, made the following orders: 1. Appeal allowed. 2. Judgment of the Court below to be set aside. 3. The matter be remitted back to the Local Court for determination. 4. Calcorp to pay the Mr and Mrs Blake's costs of the appeal as agreed or as assessed. 1. Calcorp now seeks an order that its costs be paid from the Suitors' Fund. 2. I am not persuaded that I should make such an order. 3. The object of the Suitors' Fund Act is to provide relief to a party "who incurs or becomes liable for costs not through his [or her] own decision or conduct but because of some error of law in the court appealed from": Acquilina v Dairy Farmers' Co-operative Milk Co Ltd (No 2) (1965) 82 WN (Pt 1) (NSW) 531 at 534 (Moffitt J); cited with approval in Mir Bros Developments Pty Ltd v Atlantic Constructions Pty Ltd (1985) 1 NSWLR 491 at 494 (Kirby P, Samuels and McHugh JJA). 4. In this case, the parties now agree that the Magistrate's decision was infected with legal error. In written submissions, Ms Nelson, who appeared for Calcorp in the Local Court, stated that Calcorp "acknowledges that errors of law were made by the learned Magistrate in the court below and that [Mr and Mrs Blake] are entitled to the costs of the Appeal". 5. Ms Nelson did not identify the errors of law, but merely recited the grounds relied upon by Mr and Mrs Blake in their amended summons commencing an appeal. 6. The difficulty I see is that the errors, which Calcorp accepts the Magistrate made, were made in the course of acceding to Calcorp's application for orders striking out Mr and Mrs Blake's defence and cross-claim and entering summary judgment in its favour against them. 7. In order to attract a favourable exercise of this Court's discretion to make an order in its favour under the Suitors' Fund Act it would be necessary for Calcorp to show that it had not led the Magistrate into error. After all, the Magistrate made the very orders that Calcorp sought. 8. It appears that the Magistrate did not give reasons for his decision beyond what emerged during his exchange with counsel during the course of argument. 9. In that regard, Ms Nelson submitted: "…the various exchanges as seen in the transcript between the legal representatives and the learned Magistrate, would suggest that his Honour had a firm view as to the outcome of the proceedings below independently of either of the representatives". 1. It is clear from the transcript that the Magistrate articulated the basis upon which he understood Ms Nelson advanced Calcorp's entitlement to summary relief; and that Ms Nelson agreed, in terms, with the Magistrate's formulation of Calcorp's case: see Transcript p 12. 2. In circumstances where: 1. Calcorp has failed to identify the errors of law it says it now accepts that the Magistrate made; 2. those alleged errors of law were made by the Magistrate in the course of acceding to Calcorp's application for summary relief; and 3. Calcorp, through its counsel, expressed agreement, in terms with the Magistrate as to the reasons the Magistrate proposed to grant that relief; Calcorp has not, in my opinion, made out a basis for a favourable exercise of this Court's discretion to make in its favour an order under the Suitors' Fund Act. 1. I decline to make an order under the Suitors' Fund Act.