Fees of $1.3 million where judgment award was $73,252 ... Is this one for the Bureau de Spank? ... Judgment amended ... Supreme Court judge "misapprehended" the case ... Amount claimed unclear ... Anthony Kanaan reports
Justice Elisabeth Peden of the New South Wales Supreme Court has revised a judgment which she first handed down in July, after it was successfully argued that the case should have been dealt with in the District Court.
In the process, she noted the disproportionate value of the plaintiff’s original claim of $212,400 and the legal fees of $1.3 million.
The dispute concerned an agreement for the construction of a house and swimming pool over land in Bangalow, in the Northern Rivers region of NSW, with a contract price of $2,699,258.10.
In 2021, Atlanta Builders terminated the contract and sued the landowners, David Abela and Rebecca Amos, for unpaid work and other damages.
Atlanta Building’s solicitor, Farshad Amirbeaggi, deposed that it was necessary to brief two counsel in order to efficiently deal with the issues in dispute.
Peden J questioned whether this was true, stating that, “considering the small size and simplicity of the dispute, it is unclear why so many counsel were briefed”.
The Court Book unnecessarily ran to over 1,500 pages.
While her Honour did not consider it appropriate to refer the matter to the OLSC, because she could not assess the detail of why those costs were incurred and whether they were appropriate, she mentioned that this might be done during a costs assessment.
The plaintiff was awarded $196,577.23 in the original Supreme Court decision. Ms Amos then brought an application for the judgment to be varied under UCPR r 36.16, claiming that the court misapprehended Atlanta Building’s claims by including an amount in the judgment that did not represent any underpayment of staged works; rather, the amount represented the amount of an underpaid deposit.
Justice Peden accepted that she erred by including that sum in the judgment amount, especially considering that it was not claimed at the hearing.
The claim for the unpaid deposit was only ventilated during closing submissions, and her Honour refused leave to bring it at that late stage.
HH said:
“I misapprehended Atlanta’s claim for the repayment of debt as including the sum of $123,325.18, when that sum relates to a deposit invoice and not an invoice for works completed. This misapprehension meant that the orders did not accord with the intention of the judgment.”
Likewise, Peden considered that UCPR r 42.34 arose in the dispute. The rule operates to prevent the award of costs in a Supreme Court dispute which should have been heard in the District Court, where the amount given in judgment is less than $500,000.
Atlanta Building first commenced the proceedings in the District Court for $212,411.72. The proceedings were then transferred to NCAT, where Mr Abela filed a cross-claim for $1 million.
The proceedings were then transferred to the Supreme Court, where the cross-claim was dismissed.
Justice Peden considered that it was, at that point, open for the proceedings to then be transferred back to the District Court, and that there was no reason for it to be heard in the Supreme Court.
Her Honour also held that Atlanta Building failed to inform the list judge of the quantum of their claim, and that it was incumbent on it to assist the court in transferring the dispute to the most appropriate forum.
HH concluded:
“It would be unjust to Ms Amos to award Atlanta any costs where it ran its case with no clarity as to the amount unclaimed.”
She added that Atlanta’s explanation for breaches of orders for evidence and submissions on the motions was essentially that Mr Amirbeaggi was too busy.
“Mr Klooster [counsel for the plaintiff] accepted that where there were breaches of court orders, the appropriate course would have been for the matter to be relisted to seek an extension of time, rather than continuing to fail to comply with the orders. It is not clear why that was not done.”
Justice Peden reduced Atlanta Building’s judgment sum from $196,577.23 to $73,252.05, and ordered each party to pay their own costs.
In proceedings last year, Mr Amirbeaggi’s firm, Yates Beaggi, was ordered to refund almost $100,000 to a former client after a dispute concerning an excessive legal bill.