[2008] FCA 369
Nguyen v Sage Consultant Group Pty Ltd
Dhaliwal v De Castro
Source
Original judgment source is linked above.
Catchwords
[2008] FCA 369
Nguyen v Sage Consultant Group Pty LtdDhaliwal v De Castro
Judgment (2 paragraphs)
[1]
JUDGMENT
I have published four judgments in these proceedings. [1] I shall use the same abbreviations here.
On 15 August 2023, I made final orders as follows: [2]
1. The Statement of Claim is dismissed.
2. Judgment for the [Owners] against the [Builder] in the sum of $1,308,056.12.
3. Judgment for the [Owners] against [Mr Kazzi] in the sum of $277,579.50.
4. [The Builder] is to pay the [Owners'] costs of the proceedings (including the Cross-Claim):
1. prior to 30 April 2021 on the ordinary basis; and
2. on and from 30 April 2021 on an indemnity basis.
1. [Mr Kazzi] is to pay the [Owners'] costs of the Cross-Claim against [Mr Kazzi].
2. The sum of $42,280 paid by the [Builder] to the District Court on or about 31 August 2020 as security for the [Owners'] costs of the proceedings is to be paid to the [Owners], together with any interest accrued thereon.
3. The sum of $70,000 paid by the [Owners] into the trust account of Fortis Law Group on or about 16 December 2020 as security for the [Builder's and Mr Kazzi's] costs of the Cross-Claim is to be paid to the [Owners], together with any interest accrued thereon.
4. The [Builder] is to pay the [Owners] interest on the [Owners'] costs and disbursements:
1. at the rate prescribed in Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") r 36.7;
2. on the Allowed Percentage of each amount of costs and disbursements actually paid by the [Owners]; and
3. from the date of payment by the [Owners] of each such amount of costs and disbursements until the costs due under these orders have been paid.
Note:
1. The "Allowed Percentage" is a percentage calculated as (Y/X) * 100;
2. X = the total amount of costs and disbursements which the [Owners] have paid or are liable to pay in connection with these proceedings; and
3. Y = the total amount of costs and disbursements payable pursuant to Order 4 above, as agreed, assessed or fixed as a specified gross sum.
1. [Mr Kazzi] is to pay the [Owners] interest on the [Owners'] costs and disbursements:
1. at the rate prescribed in UCPR r 36.7;
2. on the Allowed Percentage of each amount of costs and disbursements actually paid by the [Owners]; and
3. from the date of payment by the [Owners] of each such amount of costs and disbursements until the costs due under these orders have been paid.
Note:
1. The "Allowed Percentage" is a percentage calculated as (Y/X) * 100;
2. X = the total amount of costs and disbursements which the [Owners] have paid or are liable to pay in connection with the Cross-Claim against [Mr Kazzi]; and
3. Y = the total amount of costs and disbursements payable pursuant to Order 5 above, as agreed, assessed or fixed as a specified gross sum.
Now, by Notice of Motion filed on 28 August 2023, Mr Kazzi seeks an order that orders 5 and 9 made on 15 August 2023 be set aside pursuant to UCPR r 36.16(3A). Mr Kazzi agrees that I should determine the question on the papers.
Orders 5 and 9 were that Mr Kazzi pay the Owners' costs of the proceedings and interest on those costs.
At [24] of my 28 July 2023 judgment, [3] I invited submissions as to costs, as to any further matters requiring determination and as to the orders necessary to finalise the proceedings.
On 4 August 2023, Mr Horowitz, who appeared for the Owners, sent an email to my associate stating that he and Ms Cameron, who appeared for the Builder and Mr Kazzi, had agreed the timetable to which I referred at [3] of my 15 August 2023 judgment, [4] namely that:
1. the parties to provide the Court with a jointly prepared set of final orders by 9 August 2023, indicating which orders remain in dispute;
2. the Builder and Mr Kazzi provide the Court with their submissions regarding any orders still in dispute by 11 August 2023; and
3. the Owners provide the Court with their submissions in response by 16 August 2023.
In his affidavit of 28 August 2023 sworn in support of Mr Kazzi's Notice of Motion of that date, the solicitor for the Builder and Mr Kazzi, Mr Christopher Nehme, stated that on 9 August 2023, Mr Kazzi had instructed him that "he was seeking alternative legal advice and directed [him] to cease all work on behalf of Mr Kazzi and [the Builder]".
As I set out at [4] of my 15 August 2023 judgment, [5] on 11 August 2023 I was informed by the solicitor for the Owners that, despite the agreed timetable to which I have referred at [6] above, they had not heard from the solicitor for the Builder and Mr Kazzi in relation to the preparation of a joint set of final orders. The Owners' solicitor provided a copy of the final orders proposed by the Owners and, on 14 August 2023, submissions in support of those orders.
Mr Nehme has deposed that, also on 14 August 2023, he received a letter from a solicitor from Voros Lawyers which stated:
"We are instructed to act for Mr Peter Kazzi in respect of a claim in negligence arising out of the conduct of Counsel briefed in the above proceedings, Mr Terrence Lynch.
We are instructed that during the course of the abovenamed proceedings, Mr Lynch made concessions and admissions without instructions which gave rise to a personal order against Mr Kazzi.
Could you please provide us with all relevant documents and information evidencing this assertion." (Emphasis in original.)
The allegation that Mr Lynch SC "made concessions and admissions without instructions which gave rise to a personal order against Mr Kazzi" was, I assume, a reference to the matters to which I referred at [8] to [10] of my 28 July 2023 judgment, where I stated:
"However, as the Owners have now pointed out, in expressing those views I overlooked the fact that, during the hearing, it was accepted on behalf of Mr Kazzi that he had been in breach of his duty under s 37 of the Design and Building Practitioners Act 2020 (NSW) ("the DBP Act") in relation to the defective works that I described in the principal judgment as "Boundary Encroachments" [6] and "Concrete Strength". [7]
Thus, in closing submissions Mr Lynch SC and Ms Cameron, for the Builder and Mr Kazzi, submitted, in relation to the Owners' claim against Mr Kazzi under the DBP Act:
'Other than in respect of a departure from usual practice in not
(1) obtaining slump test for concrete; and
(2) not undertaking 'check surveys' in respect of construction plans,
the elements of negligence have not been proved. Mr Kazzi submits that not only do those matters need to be specifically pleaded, which they were not, they must also be specifically proved. Here, they have not been proved.'
Further, in closing oral submissions, I had this exchange with Mr Lynch:
'… As we have said, a breach of a relevant duty is not established merely by the existence of defects. We accept in our submissions that there was a breach of duty in relation to the failure to check that the delivered concrete for the slabs matched specification, and we accept that the failure to ensure that check surveys for the alignment of formwork was another failure.
HIS HONOUR: Is that the encroachment?
LYNCH: Yes. We're describing the same thing, your Honour. The formwork fell slightly initially over Mr Mahedy's property, and then subsequently back over on Mr [Kazzi's] property, and a check survey before the concrete poured in those walls would have established that.
…
LYNCH: The supervisor - the person undertaking the construction work - is not required to be there, for example, all working hours every day. That's why we accept that there is a requirement to take reasonable care in relation to batch testing concrete deliveries, and the surveys, and those duties were breached. But the others do not follow.'"
Of course, I do not know, and express no view about, whether Mr Lynch made the "concessions and admissions" without instructions. The wider point is that a lawyer retained to conduct legal proceedings has implied authority to make admissions against interest, particularly where, as here, the admissions were made in relation to issues directly in contest in the litigation. [8]
As I set out in my 15 August 2023 judgment, having received the Owners' proposed final orders, and their submissions in support of those orders, and having heard nothing from the Builder and Mr Kazzi in relation to that matter, I made the orders that I have set out above.
Mr Nehme has deposed:
"On 15 August 2023, following Judgment:
(a) I was informed by Mr Kazzi that Voros Lawyers were not in a position to deal with any dispute as to the orders made by the Court; and
(b) Fortis Law was re-engaged by Mr Kazzi on a limited basis - to dispute the orders for costs made against Mr Kazzi only. I am informed and verily believe that Fortis Law was re-engaged on that basis given their extensive knowledge of the matter and Mr Kazzi's desire to deal with the disputed orders promptly.
On 16 August 2023, I was notified by counsel for the plaintiff and cross-defendants that she must return her brief in the matter under rule 101 of the Legal Profession Uniform Conduct (Barristers) Rules 2015. The plaintiff and cross-defendants are presently seeking to engage alternative counsel."
Rule 101 of the Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) obliges barristers to refuse to retain a brief in a number of circumstances, including where the barrister has reasonable grounds to believe that he or she may, as a real possibility, be a witness in the case. [9]
Following receipt of the Notice of Motion of 28 August 2023 and Mr Nehme's affidavit, I invited submissions in support of the orders sought in that Notice of Motion.
I have now received those submissions.
As I have set out, the Notice of Motion of 28 August 2023 seeks an order setting aside the relevant orders under UCPR r 36.16(3A) which provides:
"If notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may determine the matter, and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered."
However, in the submissions I have received on behalf of Mr Kazzi it is stated:
"Mr Kazzi accepts that the only relevant rule of Court open to be invoked in support of his Motion is rule 36.16(2)(b) of the UCPR: 'The court may set aside or vary a judgment or order after it has been entered if - it has been give[n] or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order …'." (Emphasis in original.)
Those submissions continued:
"Mr Kazzi accepts that he failed to comply with the directions made by the Court on 4 August 2023. The circumstances surrounding the non-compliance are set out in the affidavit of Christopher Nehme sworn 28 August 2023 ('Nehme Affidavit') - in the period between 9 and 15 August 2023, Mr Kazzi sought alternative legal advice and directed Fortis Law to cease all work on his behalf, but was subsequently informed that the newly appointed solicitors were unable to deal with the directions made by the Court on 4 August 2023 (at [5]-[7]).
In those circumstances, Mr Kazzi submits that the orders under challenge were made, effectively, in his absence and now seeks a further opportunity to make submissions in respect of those orders; both of which concern the order for costs made against Mr Kazzi.
Mr Kazzi primarily seeks an order that each party bear their own costs of the cross-claim. Alternatively, he seeks an order that the Owners be awarded limited costs on the cross-claim. Those orders are sought in circumstances where (a) the Owners only enjoyed limited success on the cross-claim and (b) such success arose from a concession made by senior counsel for cross-defendants. Mr Kazzi intends to serve comprehensive submissions in support of the proposed order for costs; however, for the reasons touched on in [8] of the Nehme Affidavit, Mr Kazzi has not yet and will require further time to prepare those submissions."
I do not see these matters as warranting the setting aside of the orders I made on 15 August 2023.
I doubt that my orders concerning Mr Kazzi's obligation to pay costs were made in Mr Kazzi's "absence" for the purposes of UCPR r 36.16(2)(b). "Absence" requires more than a party to have physical absence when the order was made; "there must be some added factor that makes it unjust for the order to stand". [10] Here, it was agreed that the question of the form of the final orders would be determined on the papers, and Mr Kazzi, by his counsel, agreed to the directions in accordance with which submissions would be made on that question. As Mr Kazzi accepts, he failed to comply with the directions to which he, by his counsel, had consented.
In any event, Mr Kazzi's explanation for any such "absence" is unsatisfactory.
The Court "will not usually exercise its discretion to set aside a judgment that was regularly obtained where the applicant had notice of the hearing and chose not to appear". [11]
That is what happened here.
It is not clear whether Mr Kazzi was personally aware of the agreement between counsel of which I was informed on 4 August 2023. But he was bound by the decision of his counsel to reach that agreement and by the decision taken on his behalf to make submissions as to the form of the orders to be made in these proceedings on the basis of the timetable that I have set out at [6] above. The evidence also does not make clear whether Mr Kazzi was told that his 9 August 2023 instructions to "cease all work" would mean that his legal representatives could not comply with that timetable. It does appear that, at least by 15 August 2023, Mr Kazzi was aware that there was a "dispute as to the orders made by the Court". [12]
The fact remains that, by giving his solicitors instructions to cease work at the critical time, Mr Kazzi in effect chose not to participate in the process for the making of submissions to which he, through his legal representatives, had agreed.
Further, it appears from the submissions at [19] above that Mr Kazzi wishes to argue that the Owners' "limited" success on the Cross-Claim against Mr Kazzi "arose from a concession made by senior counsel" for the Builder and Mr Kazzi. Determination of that issue would necessitate an investigation by me of the merits of that contention, a matter which may well involve contested evidence, [13] and one entirely inappropriate at this stage of the proceedings.
In addition to these matters, the Owners should not further be vexed in these proceedings. The position Mr Kazzi now finds himself in is a result of what he accepts to be his own non-compliance with the Court's directions which were made with the consent of his legal representatives.
The plaintiff's/cross-defendants' Notice of Motion of 28 August 2023 is dismissed with costs.
[2]
Endnotes
Oxford (NSW) Pty Ltd v KR Properties Global Pty Ltd trading as AK Properties Group ABN 62 971 068 965 [2023] NSWSC 343; Oxford (NSW) Pty Ltd v KR Properties Global Pty Ltd trading as AK Properties Group ABN 62 971 068 965 (No 2) [2023] NSWSC 680; Oxford (NSW) Pty Ltd v KR Properties Global Pty Ltd trading as AK Properties Group ABN 62 971 068 965 (No 3) [2023] NSWSC 881; Oxford (NSW) Pty Ltd v KR Properties Global Pty Ltd trading as AK Properties Group ABN 62 971 068 965 (No 4) [2023] NSWSC 960.
Substituting defined references to the parties where appropriate.
Oxford (NSW) Pty Ltd v KR Properties Global Pty Ltd trading as AK Properties Group ABN 62 971 068 965 (No 3) (supra).
Oxford (NSW) Pty Ltd v KR Properties Global Pty Ltd trading as AK Properties Group ABN 62 971 068 965 (No 4) (supra).
Ibid.
At [J47]-[J51].
At [J78]-[J79].
Singh v De Castro; Dhaliwal v De Castro; Brar v De Castro [2017] NSWCA 241 at [80] (Sackville AJA; Macfarlan and Gleeson JJA agreeing), citing Hoy Mobile Pty Ltd v Allphones Retail Pty Ltd (2008) 167 FCR 314; [2008] FCA 369 at [17]-[18] (Rares J); JD Heydon, Cross on Evidence (13th ed, 2021, LexisNexis) at [3165]; Urquhart v Butterfield (1887) 37 Ch D 357 at 369 (Cotton LJ, Sir J Hannen and Lopes LJ agreeing); Dunn v Brown (1911) 12 SR (NSW) 22 at 41 (Cullen CJ, Gordon J agreeing).
Rule 101(d).
Northey v Bega Valley Shire Council [2012] NSWCA 28 at [13] (Barrett JA).
Nguyen v Sage Consultant Group Pty Ltd; Dang v Nguyen (No 3) [2022] NSWSC 515 at [108] (Robb J).
See [13] above.
See [14] above.
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: 30 August 2023
Parties
Applicant/Plaintiff:
Oxford (NSW) Pty Ltd
Respondent/Defendant:
KR Properties Global Pty Ltd trading as AK Properties Group ABN 62 971 068 965