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Ciccarelli v Cavasinni Developments

Ciccarelli v Cavasinni Developments

Case [2004] NSWSC 788 2 September 2004

Appeal

Discovery & Disclosure

Costs

Injunction

Calderbank Letters

Civil Litigation & Procedure

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CITATION: Ciccarelli v Cavasinni Developments [2004] NSWSC 788

HEARING DATE(S): 10 August 2004

JUDGMENT DATE:
2 September 2004

JUDGMENT OF: McDougall J at 1

DECISION: See paras [138] to [140] of judgment

CATCHWORDS: PRACTICE & PROCEDURE - Part 72 r 13 Supreme Court Rules - reference -where claim for damages referred to referee for inquiry and report - where plaintiffs move for adoption, and defendant for rejection, of referee's report - obligation of referee to give reasons - where no evidence on particular point before referee - whether referee entitled to use his or her own experience as substitute for evidence - where conflict between expert evidence before referee - whether referee required to discuss speculative theories in report - onus of proof - delay of referee in reporting - COSTS - whether proceedings should have been commenced in District Court - s 134(1)(h) District Court Act 1973 - whether s 134(1)(h) enables District Court to grant injunctive relief - ss 44(1), 46(1), 140 District Court Act - power of District Court to grant injunctive relief - SCR Pt 52A r 33 - where neither party sought to transfer proceedings to the District Court - where there would be no difference in costs incurred as between Supreme Court and District Court - indemnity costs - whether plaintiffs entitled to indemnity costs - Calderbank letters - where failure of defendant to accept offer of compromise in Calderbank letters - where terms of settlement offer reasonable - where time for acceptance of settlement offer very short - whether unreasonable of defendant not to accept offer - where offer included no reference to the likely amount of the plaintiffs' costs - where offer made when plaintiffs amending reply to defence

LEGISLATION CITED: District Court Act 1973
District Court Amendment Act 1997
Supreme Court Act 1970

CASES CITED: Chloride Batteries Australia Ltd v Glendale Chemical Products Pty Ltd (1988) 17 NSWLR 60
Super Pty Ltd v SJP Formwork (Aust) Pty Ltd (1992) 29 NSWLR 549
Foxman Holdings Pty Ltd v NMBE Pty Ltd (1994) 38 NSWLR 615
Homebush Abattoir Corporation v Bermria Pty Ltd (1991) 22 NSWLR 605
White Constructions (NT) Pty Ltd v Commonwealth of Australia (1990) 7 BCL 193
Integer Computing Pty Ltd v Facom Australia Ltd (10 April 1987)
Xuereb v Viola (1988) 18 NSWLR 453
Hughes Bros Pty Ltd v Minister for Public Works (55011/1991, 17 August 1994, unreported; BC 9402885)
Re Bolton: Ex parte Bean (1987) 61 ALJR 190
Commonwealth Bank of Australia v Hadfield (2001) 53 NSWLR 614
Calderbank v Calderbank [1976] Fam 93
SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323
Jones v Bradley (No 2) [2003] NSWCA 258
Oshlack v Richmond River Council (1998) 193 CLR 72
Baerlein v Chartered Mercantile Bank [1895] 2 Ch 488
TSF Engineering Pty Ltd v Hill [1980] 2 NSWLR 105

PARTIES :
Frank and Maria Ciccarelli (Plaintiffs)
Cavasinni Developments Pty Limited (First Defendant)
Wilhand Pty Limited (Second Defendant)

FILE NUMBER(S): SC 55046/01

COUNSEL: Mr D T…

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 Ciccarelli v Cavasinni Developments

Details

AGLC: Ciccarelli v Cavasinni Developments [2004] NSWSC 788
Case: [2004] NSWSC 788
Decision Date: 2 September 2004

CaseChat Overview and Summary

The case involved Ciccarelli, the plaintiff, against Cavasinni Developments, the defendant. The dispute centred on a claim for damages referred to a referee for inquiry and report under Part 72 rule 13 of the Supreme Court Rules. The plaintiffs sought the adoption of the referee's report, while the defendants argued for its rejection. The court had to address the obligations of the referee to provide reasons for their findings, especially where no evidence was presented on a specific point. It was also necessary to determine if the referee could use personal experience as a substitute for evidence and whether the referee was required to discuss speculative theories when faced with conflicting expert evidence. Furthermore, the court had to consider the onus of proof in the context of a referee's delay in reporting, as well as the appropriateness of commencing proceedings in the District Court.

The court examined the referee's duty to provide reasons for their findings and held that a referee must give reasons for their conclusions, even if no evidence was presented on a particular point. The court found that a referee could not rely on their own experience as a substitute for evidence. In the case of conflicting expert evidence, the referee was not required to discuss speculative theories but rather to consider the evidence presented and provide reasoned conclusions. The court also considered the onus of proof in the context of the referee's delay in reporting and found that the delay did not necessarily affect the validity of the referee's report. Regarding the appropriateness of the proceedings being commenced in the District Court, the court held that the District Court did not have the authority to grant injunctive relief under the District Court Act. The court further held that indemnity costs could be awarded if the defendant failed to accept a reasonable offer of compromise made in Calderbank letters, even if the offer did not specify the likely amount of the plaintiffs' costs.

The court concluded that the referee's report should be adopted, with certain modifications to address the issues raised. The court held that the District Court did not have the authority to grant injunctive relief, and therefore, the proceedings should remain in the Supreme Court. The court found that the defendant was unreasonable in failing to accept a reasonable offer of compromise made in Calderbank letters and awarded indemnity costs to the plaintiffs. The court ordered that the defendant pay the plaintiffs' costs of the proceedings, including the indemnity costs. The case highlights the importance of providing reasons for findings, the role of expert evidence, and the consequences of failing to accept a reasonable offer of compromise.

Orders