This proceeding is part of a long running series of disputes between the parties in different Courts.
On 9 January 2019, Mr Rosario and Mrs Maria Cappello (the Cappellos) commenced a proceeding in the Supreme Court of New South Wales against an entity, then known as Hammond & Simonds NSW Pty Ltd, but now known as HomeBuilding Pty Ltd (hereafter "HomeBuilding"), in which the Cappellos sought damages against HomeBuilding (and its director, Mr John Re) (the 'Supreme Court proceeding'). The proceeding arose from a construction contract in which HomeBuilding agreed to undertake renovations at the Cappellos' residence in Haberfield entered into on 1 September 2017. HomeBuilding had terminated that contract following the Cappellos' non-payment of part of an invoice and sought to recover the unpaid part of the invoice. The Cappellos' cross-claimed against HomeBuilding (and Mr Re) for damages for delay, certain defective works and delay damages.
On 7 August 2020, HomeBuilding obtained a monetary judgment in the Supreme Court proceeding and the proceeding against Mr Re was dismissed (Cappello v Hammond & Simons NSW Pty Ltd [2020] NSWSC 1021 (Ball J). Ball J subsequently ordered that Mr and Ms Cappello pay HomeBuilding and Mr Re's costs on an indemnity basis (Cappello v Hammond & Simons NSW Pty Ltd (No.2) [2020] NSWSC 1199).
The Cappellos appealed, and that appeal partly succeeded: the quantum of the judgment in HomeBuilding's favour was reduced; although the appeal was otherwise dismissed (Cappello v Hammond & Simons NSW Pty Ltd [2021] NSWCA 57). The Cappellos were ordered to pay 75% of HomeBuilding and Mr Re's costs of appeal. The costs order at first instance remained undisturbed.
HomeBuilding and Mr Re prepared costs assessment of the Supreme Court proceeding. A costs assessor issued a certificate for determination in their favour in the sum of $157,940.94, representing a determination of the costs and the assessment of the costs. The Cappellos applied for review, however, a Costs Review Panel affirmed the assessor's determinations.
HomeBuilding and Mr Re registered the certificates of determination on costs and on 1 April 2022, this Court ordered judgment in their favour against the Cappellos for the sum of $164,290.29. (the 'District Court Judgment')
On 13 September 2022, HomeBuilding and Mr Re sought to enforce the District Court judgment entered in this Court on 1 April 2022 by obtaining the issue of a writ for levy of property. On 27 October 2022, officers from the Burwood Sheriff's Office attended the Cappellos' home for the purpose of executing the writ.
On or about 28 October 2022, the Cappellos applied to this Court, ex parte, for a stay. Order 1 of the notice of motion read as follows:
"1. An urgent exparte (sic) stay be granted in relation to the judgment that was entered in these proceedings upon the filing of the Certificate of Determination of costs by the defendant."
This was a reference to the District Court Judgment.
The Court's online records show that on 23 November 2022, his Honour Judge Fitzsimmons SC exercised the Court's power under s 125 of the Civil Procedure Act 2005 (NSW) to stay the execution of the District Court Judgment until further order of the Court. The reference to s 125 is a misnomer. Section 125 of the Civil Procedure Act appears in subdivision 3 which relates to enforcement of judgments by garnishee order. The Court's power to stay a judgment is under s 135 of the Civil Procedure Act. (Other sources of power include s 67 of the Civil Procedure Act). Nevertheless, the plain intention of the order made on 23 November 2022 was to stay execution (by whatever means of enforcement) of the District Court Judgment so as to enable the Capellos to exhaust rights of appeal or review from the decisions which led to the making of the District Court Judgment. I would also add that to the extent that the order erroneously refers to s 125, rather than s 135 of the Civil Procedure Act, the reference can be excised under r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW).
On 9 December 2022, Gibson DCJ dismissed the Cappellos' appeal from the decisions of the costs review panel (Cappello v HomeBuilding Pty Ltd [2022] NSWDC 725). In a separate judgment, her Honour ordered the Cappellos to pay HomeBuilding's costs by way of a gross sum, although that particular order was stayed for a short time (Cappello v HomeBuilding Pty Ltd (No.2) [2023] NSWDC 54).
The Cappellos then filed a Summons seeking judicial review of Gibson DCJ's decision on 9 December 2022 in the Court of Appeal. On 26 May 2023, the Court of Appeal dismissed the summons (Cappello v HomeBuilding Pty Ltd [2023] NSWCA 109).
On 1 August 2023, Malik Anne, of the law firm Adams & Partners Lawyers, the solicitors for HomeBuilding and Mr Re, emailed Rosario Cappello. In the email, Ms Anne referred (relevantly) to the stay granted by this Court on 23 November 2022. Mr Cappello was asked whether he consented to the stay being lifted and, in lieu of any (satisfactory) response, foreshadowed that HomeBuilding would apply to this Court (relevantly) to lift the stay and for the costs of any such application.
[2]
The present application
On 3 August 2023, HomeBuilding and Mr Re filed a motion in this Court, seeking the lifting of the stay imposed on 23 November 2022 and the costs of the application.
This motion was one of a number of motions that were listed before me, when administering the list of motions for the August 2023 Parramatta civil listings. But on the eve of the motions list returnable on 14 August 2023, Mr Cappello emailed the Registry of the Parramatta District Court stating that the Cappellos could not rearrange their work commitments and sought an adjournment to stand the matter over for directions on 28 August 2023 so as to enable the Cappellos to obtain legal advice and to consider their position.
On 14 August 2023, as they foreshadowed (although without having first obtained the Court's consent to their non-appearance), the Cappellos did not appear. Notwithstanding that omission, in the circumstances, I determined that the motion be adjourned to 28 August 2023 at 9:00am (reserving the costs of HomeBuilding's and Re's costs of their appearance on 14 August 2023).
Subject to two exceptions, I note that in each of the hearings of the proceedings before Ball J (on 27-29 July 2020) Gibson DCJ (9 December 2022) and before the Court of Appeal (8 May 2023) the Cappellos were self-represented. A first exception, in relation to Cappellos' general self-representation, arose in relation to the hearing in the Court of Appeal on 4 March 2021 from Ball J's decision, when Mr Breakspear of Counsel appeared for them at the hearing. A second exception in relation to their self-representation arose in relation to the stay application filed on or about 28 October 2022 when Mr Trevor Hall, a solicitor from the firm Hall & Partners, prepared the stay application.
In anticipation of the return date on 28 August 2022, on 18 August 2023, through my Associate, I arranged to send through to the Cappellos an email (to the same email address through which Mr Cappello had foreshadowed his non-attendance on 14 August) in which, amongst other things, I warned them of the potential consequences should they not appear on 28 August 2023, including the possibility that orders might be made without further notice to them.
On 24 August 2023, my Associate received an email from Mr Cappello. It was in the following terms:
"I have advised the other side of my intention to send you an email today and that the contents of the email will be:
1. the judgement debtors will not be appearing on Monday (28 August 2023) to oppose the motion to lift the stay imposed on the writ issued by the judgment creditor.
2. The notice of motion was attached to an email sent to me at 4:04 PM on 9 August 2023, not on 9 August 2023 as his honour was allowed to believe.
3. The judgement itself was stayed by another order which has not been set aside
4. The lifting of the stay on the writ does not mean that the judgement does not remain stayed by the other order.
Yours faithfully,
Rosario Cappello"
It was apparent on the face of this email that Mr Cappello did not, as he should have done, copied the legal practitioner for HomeBuilding or Mr Re into his email of 24 August 2023. Given Mr Cappello's past not insignificant experience in conducting litigation on his own and his wife's behalf, it would have been expected that he would have copied his opponent into correspondence he sent to Court. Be that as it may, I arranged for my Associate to on-send this email to HomeBuilding's and Mr Re's solicitor.
[3]
The hearing of the motion
The content of Mr Cappello's email of 24 August 2023 does not provide a justification for non-attendance at the motion on 28 August 2023. Rather it contains a bare (or perhaps more accurately defiant) indication that there will be no attendance. This is in the face of clear warning to him and Mrs Cappello that orders may be made in their absence without further notice to them.
When the matter was called (outside the Court) on 28 August 2023, predictably, no appearance was entered by the Cappellos.
I have considered the content of Mr Cappello's email of 24 August 2023. It suffices to say that it does not provide an arguable basis for withholding the relief sought in HomeBuilding's notice of motion.
Contrary to what is suggested in that email, it appears to me that the Cappellos' have exhausted their avenues to appeal the decisions which led to the making of the District Court Judgment. That being so, the stay should be lifted. I order that:
1. the reference to s 125 in the order of 23 November 2022 be corrected by substituting s 135 of the Civil Procedure Act.
2. the stay imposed by the Court on 23 November 2022 on execution of the District Court Judgment entered on 1 April 2022 is lifted.
3. the judgment debtors, Mr and Mrs Cappello are to pay the judgment creditors' costs of the notice of motion dated 3 August 2023.
4. if application is to be made to vary order 3, then this should be done within 14 days.
[4]
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: 29 August 2023
Parties
Applicant/Plaintiff:
HomeBuilding Pty Ltd (formerly known as Hammond & Simonds Pty Ltd ABN 61 162 746 929)