Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Riva NSW Pty Ltd v Key Nominees Pty Ltd [2019] NSWCA 82 Hearing dates: 12 April 2019 Decision date: 12 April 2019 Before: Leeming JA; Payne JA Decision: The summons filed on 16 January 2019 and the notice of appeal filed on 2 November 2018 are dismissed with costs. Catchwords: APPEAL – application for leave – primary judge dismissed proceedings following non-compliance with orders requiring payment of previous costs – no dispute that orders had not been complied with – no reasons sought – leave refused Category: Principal judgment Parties: Riva NSW Pty Ltd (First Applicant) Gustavo Ferella (Second Applicant) Angelo Ferella (Third Applicant) Key Nominees Pty Ltd (Respondent) Representation: Counsel: RK Newton (Applicants) RA Parsons (Respondent) Solicitors: Zali Burrows at Law (Applicants) Bray, Jackson & Co (Respondent) File Number(s): (2018/265776); (2019/15816) Publication restriction: None Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Citation: None Date of Decision: 3 August 2018 Before: Slattery J File Number(s): 2018/69234 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] EX TEMPORE Judgment 1. THE COURT: The applicants, Riva NSW Pty Ltd, Mr Gustavo Ferella and Mr Angelo Ferella, seek leave to appeal from interlocutory orders made on 3 August 2018 by the Equity Division (Slattery J) which in substance struck out proceedings commenced by them. This occurred on the application of Key Nominees Pty Ltd, on the basis that the proceeding had been permanently stayed following orders made on 11 December 2017. The orders made on that date identified (in order 2) no fewer than ten costs orders in various courts commenced between 2009 and 2016, one of which (in respect of proceedings commenced in 2009) was in the process of being assessed. Order 4 made on 11 December 2017 was: "In the event of the plaintiffs failing to comply with order 2 hereof within 30 days of the issue of the Certificate of Determination of Costs and Certificate of Determination of Manager's Assessment Costs in respect of the 2009 Proceedings, that the proceedings be permanently stayed." 1. The affidavit evidence on which Key Nominees relied before the primary judge included that of a solicitor asserting that the assessment of the 2009 costs order had been completed, that the steps stated in order 4 had been taken, and a period of greater than 30 days had expired and "no payment has been made by the plaintiffs to satisfy any of the costs orders in favour of the defendant against the plaintiffs". 2. Orders 5, 6 and 7 made on 11 December 2017 dealt with set-off. Order 7 is of greatest relevance. It provided: "The defendant shall allow a set-off to the plaintiffs against the total sum payable pursuant to the conditions of cl 2A above in the sum of $116,217.59 being the sum including accrued interest, retained by the defendant as security for further costs and applied to such costs by the defendant following completion of the sale of the property at XXX Point Piper by the defendant as mortgagee in possession." 1. Orders 5 and 6 were in similar terms, but related to amounts to be set off of $16,916.92 and $2,820. 2. Allowing for the setting-off, now that the costs ordered in the 2009 proceedings have been quantified, approximately $80,000 was required to be paid under the regime ordered on 11 December 2017. It was common ground when the matter came on for argument before us today that the applicants had taken no step to pay any amount to the respondent although it is accepted that they were entitled to the benefit of the setting off of some $135,000 in orders 5, 6 and 7, but there was no dispute that there had not been compliance in a material way to the obligations in order 2 of the orders made of 11 December 2017. 3. It is convenient to summarise the hearing on 3 August 2018. It was brief. Mr Newton, who appeared then as in this Court, for Riva and Mr G and Mr A Ferella, accepted that his clients had received the assessment of costs in the 2009 proceedings. There was a debate between Mr Newton and the primary judge as to the effect of the orders made by Stevenson J at transcript page 9, which (if it is correctly recorded) appears to say that it was necessary to pay the entirety of the amount of costs assessed in the 2009 proceedings when that had been quantified. 4. Mr Newton then made a series of other submissions. He submitted that: "[W]hat my clients are saying is that in respect of at least one of those assessments, we were wrong-footed and we were wrong-footed because of an administrative error by the assessor and the office of the costs assessment office." The primary judge said that this had not been proven in relation to the 2009 proceedings. No attempt was made to raise this in support of the grant of leave today. 1. Mr Newton then drew attention to an application made by his clients to vary the orders made by Stevenson J which, seemingly, had not been determined. His Honour expressed the view that even if he had jurisdiction to accede to that application, he would not do so unless the money were paid into Court. 2. The primary judge then said "there has to be an end to these things" and stated that the very detailed orders had to be followed in order to bring an end to the proceedings and dismissed the statement of claim. His Honour was not asked to give reasons, and did not do so. 3. The applicants initially proceeded in this Court on the basis that an appeal lays as of right. That was incorrect, and they have filed a summons seeking leave to appeal. It is convenient to pass over the question of extension of time, and proceed immediately to the merits of the application, which is the course we followed during the hearing this morning. 4. There is no question of principle or general importance. Rather, Mr Newton maintains that there has been an injustice to his clients, following the misconduct of those acting for Key Nominees. 5. Mr Newton says that the affidavit evidence upon which Key Nominees relied before the primary judge was wrong. In his written submissions, he went further and said that there had been "active concealment" by the respondent's solicitor. However, in this Court, ultimately Mr Newton withdrew that allegation. That was a proper course to take, there not having been any proper basis for the allegation which had been made. 6. Nothing turns on the fact that there was a photocopying error in the materials which had been provided to the primary judge. As it turns out, the odd numbered pages of an earlier solicitor's affidavit had been omitted from a Court book which had been provided to the primary judge. It remained the case before the primary judge, just as it remains today, that the applicants had not made any payments to the respondent following the time specified in the 11 December 2017 orders, just as it remains the case today that there has not been compliance with the steps required under order 2 of those orders. The permanent stay, therefore, was in force. It follows that the orders made by the primary judge were correct. There is no error in the primary judge's reasons because no reasons were sought or given. Even if the primary judge were mistaken in what his Honour had said during the course of argument as to the operation of the orders, nothing turns on that. Further, in answer to questions from the Court, Mr Newton conceded that it would be open to his clients now to pay the amounts owed by them and to provide security in the amount directed by Stevenson J in the orders of 11 December 2017 and seek leave to file a further statement of claim. 7. For those reasons, there is no basis for a grant of leave and, accordingly, no reason to extend the time within which to seek leave to appeal. 8. The summons filed on 16 January 2019 and the notice of appeal filed on 2 November 2018 are dismissed with costs. ********** 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: 17 April 2019