Mendonca v Tonna

Relevant principles

1. The notice of motion was filed within the time provided for by UCPR, r 36.16(3A). Accordingly the Court's power to set aside or vary its judgment or order may be exercised as if that judgment or order had not been entered. UCPR r 36.16(1) provides as follows: (1) The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order.
2. As this Court noted in Majak v Rose (No 5) [2017] NSWCA 238 at [12] (Leeming and Simpson JJA, Emmett AJA), r 36.16(1) has "a serious, but limited, purpose which is to permit readily identifiable, readily rectifiable, inadvertent errors to be corrected without the complication and expense of an appeal". The exercise of that power is subject to the same limitations as the Court's inherent power to set aside or vary a judgment that has not been entered. That power, as Mason CJ noted in Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at 302-303; [1993] HCA 6, is enlivened where the Court has "apparently proceeded according to some misapprehension of the facts, or the relevant law" and where that misapprehension is not solely due to the neglect or default of the party seeking to set aside or vary the judgment. Accordingly, it is not to be exercised for the purpose of re-agitating arguments that have already been considered by the Court, or for raising new arguments that could have been but were not made during the hearing.
3. The applicant's motion also relies on UCPR, r 36.15(1) which provides: (1) A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith.
4. As used in this provision, irregularity ordinarily requires that there be some contravention of the rules in relation to the entry of the judgment or order, whereas illegality or lack of good faith usually involve some wrongdoing or improper conduct in relation to the procurement of the relevant judgment or order: Bobolas v Waverley Council [2014] NSWCA 131 at [27] (Meagher and Gleeson JJA, Sackville AJA).

Disposition

1. In her written submissions, the applicant advances five grounds on which it is said this Court's judgment dismissing the appeal should be set aside and a new trial ordered. That appeal focussed on the primary judge's conclusion that there was a resulting trust, her Honour's dismissal of Dr Mendonca's claim to damages for breach of a residential tenancy agreement, and her Honour's order that Dr Mendonca pay Mr and Mrs Tonna's costs of the claims made between them. The exercise of that costs discretion turned on the rejection of Dr Mendonca's argument that she had succeeded on a discrete issue and should have her costs of that issue. With the exception of the first of those five grounds, Dr Mendonca's argument addresses respects in which it is said this Court erred in concluding that her appeal should be dismissed.
2. The first of those grounds involves reliance on "further" evidence not led at first instance or on appeal. That evidence is as to separate statements alleged to have been made by Mr Tonna, and against his interest, to deponents of two affidavits, Mr Elvis Hatem and Ms Lisa Conneely. Each says that they first made contact with and met Dr Mendonca on 31 August 2020, the date on which each affidavit was sworn. Mr Hatem's evidence is that in early 2014 Mr Tonna told him that he had lent about half a million dollars to Dr Mendonca, a statement which, as an admission against interest, was relevant to Mr and Mrs Tonna's claim to a resulting trust. Ms Conneely's evidence is that at some unspecified time Mr Tonna said to her that he had a court case against Dr Mendonca and that he had to deny that he had signed a tenancy agreement with her. That statement, if made, was arguably an admission against interest by Mr Tonna, and relevant to Dr Mendonca's claim to damages for breach of the alleged tenancy agreement.
3. As Dr Mendonca did not seek to lead this evidence on the appeal, her position being that its existence was not known to her at that time, there can be no suggestion by reason of its not being available that there was any irregularity, illegality or lack of good faith enlivening the power under UCPR, r 36.15(1); or that there was any inadvertent error on the part of the Court in failing to address it. There remains for consideration whether that further evidence would be received under Supreme Court Act 1970 (NSW), s 75A(7), (8) on a reopening of the appeal and whether the circumstances justify the setting aside of the judgment for that purpose.
4. As Bell P explained in Searle v Commonwealth (2019) 100 NSWLR 55; [2019] NSWCA 127 at [169]-[175], in considering whether there are "special grounds" to warrant the reception of evidence concerning matters which occurred before the trial, the principles laid out in Akins v National Australia Bank (1994) 34 NSWLR 155 are of assistance, but not prescriptive or exhaustive. Those principles are that there will not usually be special grounds unless: (1) it is shown that the evidence could not have been obtained with reasonable diligence for use at the trial; (2) the evidence must be such that there is a high degree of probability that its use would lead to a different outcome; and (3) the evidence must be credible.
5. It has not been shown that the proposed further evidence satisfies any of these descriptions. Nor can this Court be satisfied that this evidence was not and would not have been available to be tendered in the appeal with the exercise of reasonable diligence on the part of Dr Mendonca.
6. As to the proposed further evidence, it is of admissions against interest in general terms made by Mr Tonna to persons who were at the time the affidavits were sworn involved in criminal proceedings against him. In each case those proceedings involved apprehended violence order applications; and the evidence given is of a conversation that occurred or may have occurred up to six years earlier. In neither case is the fact of the conversation corroborated by the existence of any record of the deponent. In these circumstances the proposed evidence can have little or no probative value, particularly where the primary judge's findings concerning the payments giving rise to the resulting trust and the existence of the tenancy agreement were based in part on contemporaneous documents of the parties.
7. Furthermore, Dr Mendonca's evidence does not show that the evidence now relied on could not have been obtained by exercising reasonable diligence, at least for use in the appeal. Although it is asserted by Dr Mendonca that she had never seen or spoken to either of the proposed witnesses before 31 August 2020, the materials relied on by her in the appeal included the results of a search of the "NSW Court Lists" undertaken on 23 July 2020. That document contained a list of civil and criminal cases involving Mr Tonna for the period to 13 August 2020, which included applications for apprehended violence orders involving Mr Hatem and Ms Conneely as fixed for hearing, the former on 16 and 29 July and the latter on 6 August 2020.
8. Dr Mendonca's affidavit of 31 August 2020 contains no explanation as to how, five days after this Court delivered its judgment on 26 August 2020, each of these witnesses was able, separately and rather fortuitously, to communicate with her for the first time and swear an affidavit on the same day. In the absence of such an explanation it is not possible for this Court to conclude that the evidence now relied on would not have been available for use in the appeal, or even at trial, if Dr Mendonca had made further and reasonable enquiries at an earlier time.
9. The second ground is that this Court erred in not addressing the grounds of appeal asserting that the transfer of Dr Mendonca's residential tenancy proceedings from the NSW Civil and Administrative Tribunal to the Supreme Court was a "nullity". The claim made in those proceedings for damages and possession of the Galston property was dealt with by the primary judge and dismissed. It was no part of Dr Mendonca's case before the primary judge that those proceedings were a "nullity". Whilst Dr Mendonca's grounds of appeal included that the primary judge did not address whether the Tribunal erred in transferring the tenancy proceedings to the Supreme Court, that ground was not referred to in her oral argument. Whilst it is correct that this Court did not address that argument, there was no error in its failing to do so where the issue was not raised before, and did not need to be decided by, the primary judge.
10. The third ground is that at Appeal Judgment [46] this Court recorded an incorrect understanding of Dr Mendonca's argument in relation to the resulting trust claim in saying that she "denied the respondents were entitled to any beneficial interest in the property". In fact, that statement was correct, and repeated an equally correct observation made by the primary judge. Dr Mendonca's primary position in answer to the resulting trust claim was that she had provided the entirety of the purchase price for the property, the shortfall beyond her borrowing from the ANZ bank satisfied by a loan from the respondents to her. If that contention was made out, the respondents would not have had any beneficial interest in the property because they would not have made any contribution to its purchase. There was no misapprehension by the Court of any part of Dr Mendonca's response to the resulting trust claim.
11. The fourth ground is that when considering her costs appeal the Court overlooked that a majority of the hearing before the primary judge was spent dealing with matters concerning the respondents' express trust claim. In relation to that appeal, the question for this Court was whether the primary judge erred in exercising the costs discretion. The answer to that question turned on whether her Honour erred in holding that the respondents' claim to an express trust raised a separate issue which took up a significant part of the hearing. This Court concluded that there was no error in that respect. In dealing with this question it had regard to matters including the time spent on that separate issue during the hearing at first instance.
12. The fifth ground is that this Court did not address whether the primary judge erred in failing to require the respondents to account for rent that they received as sub-lessors of the Galston property. The difficulty for this argument is that the applicant did not challenge that finding in the appeal. For that reason there was no error on the part of this Court in not dealing with such a challenge.
13. In the result the application for orders setting aside this Court's judgment and for a new trial must be dismissed.

Mr and Mrs Tonna's notice of motion

1. The appeal to this Court was dismissed with costs. As such the result for the respondents was "no less favourable" than their offer to pay Dr Mendonca $5,000 with the appeal to be dismissed. It follows that they are entitled to an order for costs assessed on an indemnity basis from the day after the date of that offer "unless the Court orders otherwise": UCPR, rr 42.14, 51.48.
2. As this Court said in Croghan v Blacktown City Council (2019) 100 NSWLR 757; [2019] NSWCA 248 at [12]-[14], a significant (but not necessarily determinative) factor that may justify the Court ordering "otherwise" is where the rejection of the offer was reasonable. Whether that is so depends on the facts and circumstances specific to the case, including whether the nature of the dispute was uncertain at the time of the offer; whether the offeror's case changed after the offer was made; or whether all the relevant material had been served before the offer was made. Furthermore, an offer made pursuant to the UCPR will generally not attract indemnity costs where no significant compromise is made by the offeror: Mega-Top Cargo Pty Ltd v Moneytech Services Pty Ltd [2016] NSWCA 3 at [5].
3. None of the matters raised by Dr Mendonca in her written submissions justifies a finding that her rejection of the respondents' offer was reasonable, or that the Court should make an order other than awarding indemnity costs. At the time the offer was made, she had filed and served her amended notice of appeal. As there was no cross-appeal or notice of contention, the issues on appeal were limited to those that she sought to raise. To the extent that there remained any uncertainty about those issues, that was attributable almost entirely to the number (129) and prolixity of the separate grounds of appeal. Although the respondents' submissions were served after the offer had expired, those submissions did not rely on additional evidence or matters that were not argued before the primary judge. Accordingly Dr Mendonca was not deprived of any material relevant to her ability to assess that offer, or the merits of her appeal, at the time it was made on 22 May 2020.
4. Earlier and shortly after the applicant had filed her amended notice of appeal, the respondents' solicitors wrote to Dr Mendonca referring to the numerous grounds of appeal and maintaining, correctly in our view, that many of them appeared to have "no basis in law or in fact" and that others were "spurious, including multiple instances where it appears that you are asserting that a typographical error amounts to a ground of appeal, or where you claim that there has been a miscarriage of justice without providing a basis for that claim". That letter concluded with a statement urging Dr Mendonca to "seek legal advice urgently" because her appeal was considered not to have "any reasonable prospects of success".
5. In the circumstances the respondents' offer to pay $5,000 in consideration of the appeal being dismissed represented a genuine compromise, particularly where it was apparent from the terms of that letter that costs had already been incurred in responding to the service of Dr Mendonca's various "Appeal Notices". Her rejection of that offer is not shown to be reasonable. It follows that the respondents are entitled to indemnity costs, there being no good reason to displace that presumption.

Conclusion

1. The Court makes the following orders: 1. Vary order 3 made on 26 August 2020 as follows: Appellant pay respondents' costs of the appeal to be assessed: (i) Up to and including 22 May 2020 on the ordinary basis; and (ii) From 23 May 2020 on an indemnity basis. 1. Dismiss Dr Mendonca's amended notice of motion filed 4 September 2020. 2. Dr Mendonca pay the respondents' costs of that amended notice of motion. 3. Dr Mendonca pay the respondents' costs of their notice of motion filed 3 September 2020.

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: 16 December 2020