Carbone v Fowler Homes Pty Ltd; Carbone v Fowler Homes Pty Ltd (No 2) [2024] NSWCA 214

Carbone v Fowler Homes Pty Ltd; Carbone v Fowler Homes Pty Ltd (No 2) [2024] NSWCA 214

The Court held that there were slips in the earlier orders: Matthew Carbone's damages for deprivation of possession had been calculated for only one of two units, requiring a further $31,500, and the judgment should include $17,983.15 in pre-judgment interest rather than leave in place the District Court's separate interest order. The resulting judgment for Matthew was $122,742.15. For costs, the Court considered the parties' partial successes, the overlap between the two appeals, the practical difficulty and likely disputation involved in apportioning appeal costs, and the significance of Matthew's success at trial. It ordered no costs of the appeals, left Joe's adverse District Court...

Jurisdiction
Australia
Judgment Date
05 September 2024
Procedural Posture
Costs; Post Judgment Applications Following Partially Successful Appeal / Court of Appeal Determination on the Papers of Costs and Motions Under R 36.16 of the Uniform Civil Procedure Rules 2005 (nsw)
Outcome
Matthew Carbone's post-judgment corrections were substantially accepted; no order was made as to appeal costs; Fowler Homes was ordered to pay Matthew Carbone's District Court costs excluding the Reference; Giuseppe Carbone's notice of motion filed on 20 August 2024 was dismissed.
Legal Topics
['re Exercise of Costs Discretion After Appeal' 'slip Correction' 'pre Judgment Interest' 'post Judgment Interest' 'costs Following the Event']
['civil Procedure' 'costs' 'appeals'] ['re Exercise of Costs Discretion After Appeal' 'slip Correction' 'pre Judgment Interest' 'post Judgment Interest' 'costs Following the Event']

Case Brief

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Procedural Posture

Costs; Post Judgment Applications Following Partially Successful Appeal / Court of Appeal Determination on the Papers of Costs and Motions Under R 36.16 of the Uniform Civil Procedure Rules 2005 (nsw)

Legal Issues

  1. 1 ["Whether there was a slip in this Court's calculation of Matthew Carbone's damages for rent foregone for two units." 'Whether order 4 made by this Court on 6 August 2024 should be set aside and the District Court judgment varied to include pre-judgment interest.' "What costs orders should be made for the appeals and for the District Court proceedings after Matthew Carbone's partial success and Giuseppe Carbone's failed appeal." "Whether Giuseppe Carbone's notice of motion filed on 20 August 2024 should be dismissed."]

Ratio Decidendi

The Court held that there were slips in the earlier orders: Matthew Carbone's damages for deprivation of possession had been calculated for only one of two units, requiring a further $31,500, and the judgment should include $17,983.15 in pre-judgment interest rather than leave in place the District Court's separate interest order. The resulting judgment for Matthew was $122,742.15. For costs, the Court considered the parties' partial successes, the overlap between the two appeals, the practical difficulty and likely disputation involved in apportioning appeal costs, and the significance of Matthew's success at trial. It ordered no costs of the appeals, left Joe's adverse District Court...

Court Disposition

Matthew Carbone's post-judgment corrections were substantially accepted; no order was made as to appeal costs; Fowler Homes was ordered to pay Matthew Carbone's District Court costs excluding the Reference; Giuseppe Carbone's notice of motion filed on 20 August 2024 was dismissed.

Orders

  • ['In 2023/00443714, set aside order 4 made by this Court on 6 August 2024.' 'In 2023/00443714, vary order 2 made by the District Court on 10 November 2023 by replacing $73,259 with $122,742.15, so that in proceeding 2020/308483 there be judgment and verdict for Matthew Carbone against Fowler Homes Pty Ltd in the sum...