Chioatto v Sandona - [2004] NSWSC 629

CITATION: CHIOATTO v SANDONA [2004] NSWSC 629

HEARING DATE(S): 06/07/04

JUDGMENT DATE:
6 July 2004

JUDGMENT OF: Levine J

DECISION: 1. Pursuant to s 69(5) of the Local Courts (Civil Claims) Act 1970 the stay of the judgment of orders made on 2 June 2004 by the Local Court pending the determination of the appeal be dissolved only to the extent of the sum of $10,000, being the principal sum referred to in par 3 of the statement under SCR Pt 51A and in these reasons.; 2. The respondent is pay the applicant's costs of the motion.

CATCHWORDS: Local Court (Civil Claims) Act 1970 s67(5) - stay pending appeal to Supreme Court - stay dissolved to extent of sum not in issue on appeal

LEGISLATION CITED: Local Court (Civil Claims) Act 1970 s69(5)

PARTIES :

SANTE CHIOATTO
(Plaintiff)
v
ONORINA SANDONA
AS THE ADMINISTRATRIX OF THE ESTATE OF THE LATE ADRIANO SANDONA
(Defendant)

FILE NUMBER(S): SC 11824/04

COUNSEL:
R Brender
(Applicant)
D Ash
(Respondent)

SOLICITORS:
Bielby Poulden Costello
(Applicant)
Agostini Jarrett Pty Ltd
(Respondent)

LOWER COURTJURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): 15394/2001

LOWER COURT
JUDICIAL OFFICER : Magistrate B Schurr

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

JUSTICE DAVID LEVINE

TUESDAY 6 July 2004

11824 OF 2004

SANTE CHIOATTO
(Plaintiff)

v

ONORINA SANDONA
AS THE ADMINISTRATRIX OF THE ESTATE OF THE LATE ADRIANO SANDONA
(Defendant)

JUDGMENT (Local Court (Civil Claims) Act 1970 s69(5) – stay pending appeal to Supreme Court – stay dissolved to extent of sum not in issue on appeal)

1 By notice of motion filed on 30 June 2004 the applicant, the defendant in the substantive appeal, seeks an order that the stay operating pursuant to s 69(5) of the Local Court (Civil Claims) Act 1970 be lifted in so far as it relates to the principal sum of $10,000.

2 To some extent the background of the current proceedings can be found in a judgment I delivered between the same parties on 8 November 2001 ([2001] NSWSC 1002). Subsequent to that judgment there have been further proceedings in the Local Court.

3 On 2 June 2004, it can be understood for present purposes, the learned Magistrate made findings:

(a) That Mr Sandona lent Mr Chioatto $3000 on 8 May 1976, $3000 on 7 July 1976, $3000 on 7 September 1976, and $2000 on or about 1 July 1977.

(b) That Mr Chioatto repaid $1000 in 1986.

(c) That no further repayments were made by Mr Chioatto.

(d) That on 14 November 2001 notice was given for the repayment of the loan and interest and the money became due three weeks later.

4 The Magistrate’s orders were:

1. That Mr Chioatto pay to Mr Sandona’s estate the balance of the principle, namely $10,000, and accumulated interest of 12 per cent dating from the date of each loan agreement.

2. Mr Chioatto pay the estate’s costs

5 The Magistrate’s formal…

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.

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Details

Case: [2004] NSWSC 629
Decision Date: 6 July 2004

CaseChat Overview and Summary

The case involved Chioatto, the plaintiff, and Sandona, the defendant, before the Local Court in an action regarding a civil claim. The dispute centred around a contractual obligation and the subsequent failure to fulfil a financial obligation. The Local Court was called upon to determine the validity of the claim and whether a stay of proceedings should be granted pending an appeal to the Supreme Court.

The primary legal issue before the court was whether the Local Court should grant a stay of proceedings pending the outcome of an appeal to the Supreme Court, and if so, whether this stay should encompass the entire claim or be limited to the amount contested in the appeal. This required the court to consider statutory provisions, particularly section 67(5) of the Local Court (Civil Claims) Act 1970, which provides for the stay of proceedings in certain circumstances.

The court concluded that the stay should not apply to the entire sum claimed but should be limited to the amount that was the subject of the appeal. The reasoning was grounded in the principle that a stay should not unduly prejudice the rights of the party not appealing, particularly where the amounts not in dispute were capable of immediate resolution. The court found that the statutory provisions supported a partial stay, and thus, the stay was dissolved to the extent of the sum not contested on appeal. This decision balanced the interests of both parties and adhered to the statutory framework governing such proceedings.

Orders