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Calandra v Murden

Calandra v Murden

Case [2015] NSWCA 231 12 August 2015

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Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Calandra v Murden [2015] NSWCA 231
Hearing dates: 28 July 2015
Decision date: 12 August 2015
Before: Beazley P; Meagher JA; Leeming JA
Decision:
1. Grant leave to appeal.
2. Appeal allowed with costs.
3. Set aside the orders made in the Common Law Division on 17 April 2015, and in lieu thereof, dismiss the appeal with costs.

Catchwords: ADMINISTRATIVE LAW – Legal Profession Act 2004 (NSW), s 368(5) – where costs assessor certified assessment of party/party costs – where liability for costs order released by agreement – where costs assessor’s certificates filed in Local Court – where no amount of unpaid party/party costs at time of filing – whether Local Court had power to set aside judgment entered on filing of certificate, including under Uniform Civil Procedure Rules, r 36.15 or in exercise of implied power
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 17, 133
Legal Profession Act 2004 (NSW)
Local Court Act 2007 (NSW), ss 39, 40
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Carr and Purves v Thomas [2009] NSWCA 208
Doyle v Hall Chadwick [2007] NSWCA 159
Frumar v The Owners of Strata Plan 36957 [2010] NSWCA 172
Grassby v The Queen [1989] HCA 45; 168 CLR 1
Hughes v Justin [1894] 1 QB 667
Category: Principal judgment
Parties: Emilio Calandra (First Applicant)
Jeanelle Calandra (Second Applicant)
John Murden (Respondent)
Representation:
Counsel:
PCB Semmler QC, S Tzouganatos (First and Second Applicants)
B Toomey QC, P R Glissan (Respondent)
Solicitors:
Turner Freeman (First and Second Applicants)
T D Kelly & Co (Respondent)

File Number(s): 2015/135803
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law

Citation:

[2015] NSWSC 424

Date of Decision:

17 April 2015

Before:

R S Hulme AJ

File Number(s):

2013/320857

HEADNOTE

[This headnote is not to be read as part of the judgment]

By s 368(5) of the Legal Profession Act 2004 (NSW), a judgment is deemed to be entered upon the filing of costs assessors’ certificates for the amount of the costs so assessed. On 15 January 2013, the respondent filed in the Local Court a form which was headed “Filing of Certificate of Order” to which was attached two costs assessor’s certificates. On the same day, judgment was entered in the Local Court in favour of the respondent against the applicants for $16,752.50.

The principal costs assessment was in respect of costs that the applicants had been ordered to pay on 7 July 2010 in proceedings in the Equity Division. The applicants claimed that, at the time of that assessment and at the time the certificate was filed, there was no amount of those costs which was ‘unpaid’ because the respondent had released them from liability under a Deed of Release and Indemnity.

The applicants sought to set aside the judgment entered in the Local Court. That Court did so on the basis that it had not been entered in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Calandra v Murden

Details

AGLC: Calandra v Murden [2015] NSWCA 231
Case: [2015] NSWCA 231
Decision Date: 12 August 2015

CaseChat Overview and Summary

The appeal concerned the power of the Local Court to set aside a judgment entered upon the filing of a costs assessor's certificate. The dispute arose after a costs assessor certified an assessment of party and party costs, and the liability for this costs order was subsequently released by agreement between the parties. Despite this agreement, the costs assessor's certificates were filed in the Local Court, and a judgment was entered. The central question was whether the Local Court possessed the authority to vacate this judgment, particularly in circumstances where no amount of unpaid party and party costs existed at the time of filing.

The Court of Appeal was required to determine whether the Local Court had the power to set aside the judgment. This involved considering whether such power could be exercised under rule 36.15 of the Uniform Civil Procedure Rules, or alternatively, in the exercise of an implied power inherent in the court. The interpretation of section 368(5) of the *Legal Profession Act 2004* (NSW) was also central to the determination of the court's jurisdiction in this matter.

The Court of Appeal found that the Local Court did not have the power to set aside the judgment under rule 36.15 of the Uniform Civil Procedure Rules, nor did it possess an implied power to do so in these circumstances. The Court reasoned that the filing of the costs assessor's certificate in the Local Court did not create a judgment debt where none existed, particularly given the subsequent agreement releasing the liability for costs. Consequently, the appeal was allowed, and the orders made by the Common Law Division were set aside, with the appeal being dismissed.

Orders

Orders of the court

1. Grant leave to appeal.

2. Appeal allowed with costs.

3. Set aside the orders made in the Common Law Division on 17 April 2015, and in lieu thereof, dismiss the appeal with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

Calandra v Murden [2015] NSWCA 231

Most Recent Citation

Ghosh v Miller (No 2) [2017] FCA 890

Cases Citing This Decision

Tetbury Pty Ltd v Mahony trading as Mahony Law [2024] NSWSC 446
Citation 1 (Para 104)

…In Calandra v Murden [2015] NSWCA 231, when the 2004 Act was still in force, it was noted that the process for filing a costs certificate as a judgment of the Court also required the filing of a form which specified any payments made or credits accrued since the relevant assessment, as well as a statement of the to…
Cappello v Homebuilding Pty Ltd [2024] NSWCA 88
Citation 2 (Para 45)

…The situation was summarised by Beazley P, Meagher and Leeming JJA in Calandra v Murden [2015] NSWCA 231, the year before Trad was decided, speaking of the predecessor to s 70(5):…
Fong bhnf Fong v Weller [2024] NSWCA 46
Citation 3 (Para 24)

…y because the barrister had no contractual entitlement to payment (see at [65]-[70]). The Court referred to the earlier judgment in Calandra v Murden [2015] NSWCA 231, in which this Court set aside a deemed judgment because at the time of the assessment and when the certificate was filed there was no amount of cost…
Bingham v Bevan [2023] NSWCA 186
Citation 4 (Para 3)

…he purposes of UCPR r 36.15, the judgment was registered “irregularly” because the basis for the judgment was lacking. Applying Calandra v Murden [2015] NSWCA 231 at [20] (in which it was held a judgment may be entered irregularly if “there was no amount of unpaid costs in respect of which the respondent was entitl…
Riva NSW Pty Ltd v Key Nominees Pty Ltd [2023] NSWSC 711
Citation 5

…390; [2017] NSWCA 210 Calandra v Murden [2015] NSWCA 231 Carey v Australian Broadcasting Corp (2012) 84 NSWLR 9; [2012] NSWCA 176 Chen v Lym International; Chen v Marcolongo (No 2) [2009] NSWCA 158 Commonwealth Trading Bank v Inglis (1974) 131 CLR 311; [1974] HCA 17 Cooper v Williams [1963] 2 QB 567 Corbett v Nguye…
Bingham v Bevan [2023] NSWCA 86
Citation 6 (Para 64)

…he judgment debtor had no liability to pay the costs. This Court upheld the power of the Local Court to set aside a costs judgment on that basis. 19. [2015] NSWCA 231 (Beazley P, Meagher JA and Leeming JA).…
Bingham v Bevan [2022] NSWCA 248
Citation 7 (Para 9)

…ent that it was a judgment given for the purposes of Pt 36 raised an issue as to the operation of the decision of this Court in Calandra v Murden [2015] NSWCA 231. Assuming the relevant provisions to be engaged, the argument, dismissed by the trial judge, that the judgment was entered irregularly, illegally or agai…
Miles v Slack [2022] NSWSC 926
Citation 8 (Para 116)

…In Calandra v Murden [2015] NSWCA 231, it was stated that a judgment may be entered irregularly if “there was no amount of unpaid costs in respect of which the respondent was entitled to judgment”: at [20]. The Court in Calandra cited Hughes v Justin [1894] 1 QB 667 in which Lopes LJ described as “irregular” a defa…
Bevan v Bingham [2022] NSWSC 863
Citation 9 (Para 42)

…In the following year, the Court of Appeal decided Calandra v Murden [2015] NSWCA 231 (“ Calandra” ). In that case, the respondent, Mr Murden, filed in the Local Court a form which was headed “Filing of Certificate of Order” to which was attached two costs assessor’s certificates. On the same day, judgment was ente…
Fordyce v Leung [2022] NSWCA 55
Citation 10 (Para 63)

…s ( Doyle v Hall Chadwick [2007] NSWCA 159 at [48]-[53]; Frumar v The Owners of Strata Plan 36957 [2010] NSWCA 174 at [44]; Calandra v Murden [2015] NSWCA 231 at [21]; Trad v Harbour Radio Pty Ltd [2016] NSWCA 80 at [38]-[47]).…
Fordyce v Leung in her capacity as Executrix of the Estate of the late Robert Ho [2021] NSWCA 262
Citation 11 (Para 10)

…is taken to be a judgment of the Court whose jurisdiction is invoked. A detailed explanation of why that is so can be found in Calandra v Murden [2015] NSWCA 231 at [5] (Beazley P, Meagher JA and Leeming JA). The proper characterisation of s 368(5) was discussed in Trad v Harbour Radio Pty Ltd [2016] NSWCA 80. The…
McMillan v AGB Family Settlement and Andrew G Boog t/as Austen Brown Boog Solicitors [2021] NSWSC 1380
Citation 12 (Para 42)

…In Calandra v Murden [2015] NSWCA 231, it was thus considered that it would be an appropriate exercise of the Local Court’s discretion under r 36.16 to set aside such a judgment, after the certificate on which it was based was successfully challenged, either before a review panel or in the District Court. That was…
Benjamin and Khoury Pty Ltd v Gabriel Rahme [2021] NSWSC 1302
Citation 13 (Para 32)

…Counsel for Mr Rahme referred to Calandra v Murden [2015] NSWCA 231 (“ Calandra” ), where at [11]-[13] and [20]-[22] (per Beazley P, Meagher, and Leeming JJA) it was stated:…
Rodney Naumburger in his capacity as Executor of the Estate of the late Harry Norman Freedman v Victor Berger [2021] NSWSC 903
Citation 14

…4 Black v S Freedman & Co (1910) 12 CLR 105; [1910] HCA 58 Burke v LFOT Pty Ltd (2002) 209 CLR 282; [2002] HCA 17 Calandra v Murden [2015] NSWCA 231 Challenger Property Asset Management Pty Ltd v Stonnington City Council (2011) 34 VR 445; [2011] VSC 184 Chan v Zacharia (1984) 154 CLR 178 Counsel of the Law Society…
Frigger v Kitay (No 2) [2020] FCA 497
Citation 15 (Para 3)

…udgment of the Supreme Court of Western Australia and are recoverable accordingly: Rules of the Supreme Court 1971 (WA), O 66 r 57; Calandra v Murden [2015] NSWCA 231 at [5]. In the Bankruptcy Proceedings, Colvin J was satisfied that the debt referred to in the petition was a debt owed to Mr Kitay. His Honour said…
Goyal v Battaglia [2020] FCCA 182
Citation 16 (Para 4)

…be said to be a merger of the amount of costs that was owing pursuant to this process in the deemed judgment of the court. [19] Calandra v Murden [2015] NSWCA 231 [20] Wende v Horwath (No.2) [2015] NSWCA 416, at [40]…
Cenric Group Pty Ltd v Ziegler as trustee for the Doris Gayst Testamentary Trust [2019] NSWSC 1586
Citation 17 (Para 7)

…ion Uniform Law Application Act 2014 (NSW), s 71(3) read with s 88(3) and see (for the cognate regime which formerly applied) Calandra v Murden [2015] NSWCA 231.…
Waterton v Lafferty [2019] FCA 1267
Citation 18 (Para 11)

…ed to be a judgment of the Court. Such a provision has the effect of creating a judgment without any further action being required: Calandra v Murden [2015] NSWCA 231 at [5]; and Kitay , in the matter of Frigger (No 2) [2018] FCA 1032 at [2].…
Kitay, in the matter of Frigger (No 2) [2018] FCA 1032
Citation 19 (Para 2)

…recoverable accordingly. A provision of that kind has the effect of creating a judgment without any further action being required: Calandra v Murden [2015] NSWCA 231 at [5].…
Jefferis v Gells Pty Ltd [2018] NSWDC 73
Citation 20 (Para 15)

…Both parties referred me to the decision of the Court of Appeal in Calandra v Murden [2015] NSWCA 231. In that case a Local Court judgment was entered upon the filing of two certificates from a costs assessor issued under the Act. A magistrate in the Local Court set aside the judgment entered following the filing o…
Ghosh v Miller (No 2) [2017] FCA 890
Citation 21 (Para 19)

…nforceable as a judgment upon entry in the Court’s computerised record system: see Tu v Chang (No 2) [2016] FCA 1568 at [11]; Calandra v Murden [2015] NSWCA 231 at [5]. The judgment created a debt which was immediately payable. In contrast to an order setting aside such a judgment or permanently staying it (cf the…
Wende v Horwath (No 2) [2015] NSWCA 416
Citation 22 (Para 39)

…A 182 at [8] per Giles JA. Handley AJA, at [42], considered that entry of judgment on a filed certificate was a ministerial act. In Calandra v Murden [2015] NSWCA 231, at [5], this Court, in considering the process of costs assessment for which the 2004 Act provided, explained the operation of s 368(5) in the follo…
Calandra v Murden (No 2) [2015] NSWCA 321
Citation 23 (Para 1)

…urden has applied for a certificate under the Suitors’ Fund Act 1951 (NSW) in respect of costs ordered against him by this Court: Calandra v Murden [2015] NSWCA 231. In order to explain why the motion should be dismissed, it is necessary to say something concerning the background of that appeal.…
Coshott v Barry [2015] NSWCA 257
Citation 24 (Para 130)

…o s 208J(3) it ought to be for the difference between the amount stated in the certificate and the amount that has been paid. 73. Calandra v Murden [2015] NSWCA 231 (at [21]).…

See all citing cases →

Cases Cited

John Murden v Emilio Calandra [2015] NSWSC 424
Citation 1 (Para 1)

…e applicants seek leave to appeal from a decision allowing an appeal from orders made by Local Court Magistrate Pierce: John Murden v Emilio Calandra [2015] NSWSC 424. The issue in the proposed appeal is whether the learned magistrate had power to set aside a Local Court judgment entered on the filing of two costs…
Frumar v The Owners of Strata Plan 36957 [2010] NSWCA 172
Citation 2 (Para 5)

…s deemed “with no further action” to be a judgment of the court whose jurisdiction has been invoked: see Frumar v The Owners of Strata Plan 36957 [2010] NSWCA 172 at [8] (per Giles JA), [42] (per Handley AJA, Macfarlan JA agreeing). Section 133 of the Civil Procedure Act and provisions of the UCPR give effect to th…
Carr v Thomas [2009] NSWCA 208
Citation 3 (Para 11)

…r of Mr Calandra, also operated to release Mrs Calandra as a joint obligor. The relevant principles are referred to in Carr and Purves v Thomas [2009] NSWCA 208 at [14].…
Doyle v Hall Chadwick [2007] NSWCA 159
Citation 4 (Para 16)

…015] NSWSC 424 at [3]. The Local Court had no power to set aside those determinations: [10]. The decisions of this Court in Doyle v Hall Chadwick [2007] NSWCA 159 and Frumar confirmed that a judgment entered on the filing of a costs assessor’s certificate could only be set aside if the determination of the assessor…
Grassby v the Queen [1989] HCA 45
Citation 5 (Para 21)

…The Local Court has such implied powers as are necessary to enable it properly to exercise its jurisdiction: see Grassby v The Queen [1989] HCA 45; 168 CLR 1. Those powers extend to correcting its record, which in this case required setting aside the judgment entered and the Filing of Certificate of Order form.…
[1894] 1 QB 667 [1894] 1 QB 667
Citation 6 (Para 20)

…ere was no amount of unpaid costs in respect of which the respondent was entitled to judgment as provided by s 368(5). In Hughes v Justin [1894] 1 QB 667 at 670 Lopes LJ described as “irregular” a default judgment signed for an amount to which the plaintiff was not entitled.…

Legislation Cited

Civil Procedure Act 2005 (NSW) 133, 17, 17(3)
3 mentions (from Para 2)
Uniform Civil Procedure Rules 2005 (NSW) 36.10, 36.11
3 mentions (from Para 2)
Legal Profession Act 2004 (Vic) 368(5)
2 mentions (from Para 1)
Local Court Act 2007 (NSW) 39, 40
2 mentions

Medium Neutral Citation:	Calandra v Murden [2015] NSWCA 231
Hearing dates:	28 July 2015
Decision date:	12 August 2015
Before:	Beazley P; Meagher JA; Leeming JA
Decision:	1. Grant leave to appeal. 2. Appeal allowed with costs. 3. Set aside the orders made in the Common Law Division on 17 April 2015, and in lieu thereof, dismiss the appeal with costs.
Catchwords:	ADMINISTRATIVE LAW – Legal Profession Act 2004 (NSW), s 368(5) – where costs assessor certified assessment of party/party costs – where liability for costs order released by agreement – where costs assessor’s certificates filed in Local Court – where no amount of unpaid party/party costs at time of filing – whether Local Court had power to set aside judgment entered on filing of certificate, including under Uniform Civil Procedure Rules, r 36.15 or in exercise of implied power
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 17, 133 Legal Profession Act 2004 (NSW) Local Court Act 2007 (NSW), ss 39, 40 Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Carr and Purves v Thomas [2009] NSWCA 208 Doyle v Hall Chadwick [2007] NSWCA 159 Frumar v The Owners of Strata Plan 36957 [2010] NSWCA 172 Grassby v The Queen [1989] HCA 45; 168 CLR 1 Hughes v Justin [1894] 1 QB 667
Category:	Principal judgment
Parties:	Emilio Calandra (First Applicant) Jeanelle Calandra (Second Applicant) John Murden (Respondent)
Representation:	Counsel: PCB Semmler QC, S Tzouganatos (First and Second Applicants) B Toomey QC, P R Glissan (Respondent) Solicitors: Turner Freeman (First and Second Applicants) T D Kelly & Co (Respondent)
File Number(s):	2015/135803
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2015] NSWSC 424 Date of Decision: 17 April 2015 Before: R S Hulme AJ File Number(s): 2013/320857