Damiano v Dhaliwal (No 3) - [2024] ACTMC 24

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Damiano v Dhaliwal (No 3)
Citation:	[2024] ACTMC 24
Hearing Date:	10 August 2022, 14 September 2023
Decision Date:	24 October 2024
Before:	Magistrate Stewart
Decision:	See paragraphs [41-43].
Catchwords:	CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – commercial lease, claim for costs and pre-judgment interests by successful counter-claimant, costs as a discretion only, costs not a punishment, discretion enlivened, Calderbank offers, pre-judgment interest and party and party costs awarded.
Legislation Cited:	Leases (Commercial and Retail) Act 2001 (ACT), s144. Court Procedures Rules 2006 (ACT),rr1619. Magistrates Court of the Australian Capital Territory Practice Direction No 4 of 2007 Magistrates Court of the Australian Capital Territory Practice Direction Civil 2 1 July 2019
Cases Cited:	Calderbank v Calderbank [1975] All Er 333 Damiano v Dhaliwal [2021] ACTMC 14 Damiano v Dhaliwal [2023] ACTMC 36 EMI Songs Australia Pty Ltd v Larrakin Music Publishing Pty Ltd [2011] FCAFC 92 Hazeldene’s Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) [2005] VSCA 298 Kingsley’s Chicken Pty Ltd v Queensland Investment Corp (ACTMC, Magistrate Burns, 11 November 2005) Leda Commercial Properties Pty Ltd v Brenda Hungerford Pty Ltd [2018] ACTCA 17 Ruby v Marsh (1975) 132 CLR 642
Parties:	Marilena Damiano ( Applicant) Manjit Kaur Dhaliwal ( Respondent)
Representation	Solicitors Self represented (applicant and respondent to counter-claim) Mr Donohue (defendant and counter-claimant
File Number:	CL/24/2015

MAGISTRATE STEWART:

Introduction

1․ For the sake of ease I will refer to the parties by name in this decision.

2․ This matter has been on foot since 2015. The applicant, Ms Damiano, has been physically absent from the proceedings heard before me since the afternoon of 26 October 2021. Her application was struck out[i] on that day because after attending Court in the morning session she then failed to attend Court in the second part of the day to prosecute her claim.

3․ Ms Damiano has not appealed that decision.

4․ Ms Damiano did not appear on 10 August 2022 which was the date listed for the counter-claim to be heard. No legal practitioner filed a notice of appearance and a legal practitioner did not appear on Ms Damiano’s behalf.

5․ A timetable was set for the filing of submissions on the counter-claim, quantum, evidence and authorities in support of submissions. Ms Damiano did not file any submissions or engage a legal practitioner to do so on her behalf.

6․ The counter-claimant Ms Dhaliwal filed written submissions. Her counter-claim succeeded.[ii]

7․ Ms Damiano has not appealed that decision.

8․ Filing dates were then set by the Court to allow the parties to file submissions on costs. Those dates were 20 October 2023 for Ms Dhaliwal and 17 November 2023 for Ms Damiano.

9․ The solicitor for Ms Dhaliwal filed written submissions on 10 April 2024.

10․Ms Damiano did not file any submissions by 17 November 2023 or in response to those filed for Ms Dhaliwal on 10 April 2024.

11․A further opportunity was extended by the Court for…

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: [2024] ACTMC 24
Decision Date: 24 October 2024

CaseChat Overview and Summary

The case of Damiano v Dhaliwal (No 3) involved the parties, Damiano as the plaintiff and Dhaliwal as the defendant, who were embroiled in a dispute concerning a commercial lease. The matter came before the court on an application by Damiano for costs and pre-judgement interest arising from a successful counter-claim. The nature of the case was complex, involving issues of commercial leases and the legal consequences of successful counter-claims.

The legal issues before the court centred on whether Damiano was entitled to costs and pre-judgement interest following the successful outcome of their counter-claim. The court had to consider whether the award of costs and pre-judgement interest was appropriate in the context of a successful counter-claim and whether the discretion to award such costs was properly exercised. Additionally, the court needed to examine the relevance of any Calderbank offers made by the parties during the proceedings.

The court held that the discretion to award costs in such cases was broad and not to be exercised punitively. The court found that the discretion to award costs had been enlivened by the successful counter-claim. The court also considered the Calderbank offers and determined that they did not affect the exercise of the court’s discretion. Regarding pre-judgement interest, the court held that it was appropriate to award such interest to the successful counter-claimant. Consequently, the court ordered that Damiano be awarded costs on the standard basis and pre-judgement interest from the date of the counter-claim to the date of judgment.

Orders

Orders of the court

See paragraphs [41-43].

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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