Australia, March 20 -- New South Wales Land and Environment Court issued text of the following judgement Feb. 20:

1. WARD P: By summons filed on 10 September 2024, Litigation Fund WCX Pty Ltd (Litigation Fund) seeks judicial review of a decision made in the District Court of New South Wales by Abadee DCJ (Homebuilding Pty Ltd v Cappello (No 3) [2024] NSWDC 407) (the primary judgment). In oral submissions, Litigation Fund made clear that it challenges two orders made by his Honour: Order 3, in effect, dismissing its claim that assets and property owned by the first defendant/respondent, Homebuilding Pty Ltd (Homebuilding), are the subject of a charge in its favour; and Order 5, ordering it to pay, on the indemnity basis, the costs of the NSW Sheriff (Sheriff) of and occasioned by Litigation Fund's 22 July 2024 notice asserting that claim.

2. The sole basis on which Litigation Fund challenges those orders is its contention that the primary judge committed jurisdictional error in finding that there was validly before him an interpleader Notice of Motion by the Sheriff; and thus acted ultra vires in making the impugned orders.

3. By leave of the Court, Litigation Fund was represented on this application by its director, Mr Robert Coshott, formerly a practising solicitor. Leave was necessary because Mr Coshott no longer holds a practising certificate as a solicitor (see r 7.1(2)(a) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR)). Mr Coshott has sworn two affidavits, one on 15 October 2024, annexing minutes of a company meeting on 10 September 2024 authorising him to represent the company in this litigation, and one on 4 November 2024, deposing to his awareness that he may be liable personally to pay some or all of the costs of the proceedings.

4. Both Homebuilding and the District Court filed submitting appearances.

Background

5. The present application arises in relation to a building dispute between parties other than Litigation Fund (namely, Homebuilding, on the one hand, and Mr and Mrs Cappello, on the other). It is outlined in the primary judgment (see at [1]-[35]) by reference to a judgment in this Court last year (Cappello v Homebuilding Pty Ltd [2024] NSWCA 88) and need only briefly be recounted here.

6. In 2020, Homebuilding, a construction company, obtained a monetary judgment in its favour against Mr and Mrs Cappello in relation to building works carried out on their property (Capello v Hammond & Simonds NSW Pty Ltd [2020] NSWSC 1021). The amount of the sum awarded in Homebuilding's favour was subsequently varied on appeal (Capello v Hammond & Simonds NSW Pty Ltd [2021] NSWCA 57). Since then, Homebuilding has been attempting to enforce costs judgments made in its favour in the proceedings at first instance and on Mr and Mrs Cappello's unsuccessful appeal therefrom. Homebuilding invoked the usual costs assessment process and obtained two certificates of determination of costs, which were filed in the Local Court and District Court respectively (the process by which a judgment is obtained as to the amount of the costs as assessed). Mr and Mrs Cappello were unsuccessful in their application for a review of the respective costs assessments, as they were in their appeal from the review panel's decision and from the District Court's decision dismissing that appeal.

7. On 13 November 2023, a Writ for Levy of Property (Writ) was issued on the application of Homebuilding. On 12 February 2024 (after an unsuccessful attempt by the Sheriff's office to execute the Writ), the primary judge made an order authorising the Sheriff to enter Mr and Mrs Cappello's premises for the purpose of taking goods under a writ of execution. Mr and Mrs Cappello unsuccessfully appealed against that order (see Court of Appeal judgment referred to above, handed down on 23 April 2024 ([2024] NSWCA 88)).

*Rest of the document and Footnotes can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1951bd8256f42f169713c645)

Disclaimer: Curated by HT Syndication.