Garuccio v Costanzo (No 2) - [2012] SADC 153

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
GARUCCIO v COSTANZO & ANOR (NO 2)
[2012] SADC 153
Judgment of His Honour Judge Tilmouth
19 November 2012
PROCEDURE - JUDGMENTS AND ORDERS
The plaintiff failed to appear when action called on for trial.
Held: It was appropriate to dismiss his claim by way of judgment in default, and upon the defendants electing to adduce evidence, to give judgment on the merits on their counter-claim.
District Court Rules 2006 6R 216, 6R 228(1), 6R 234(1); Peck v Peck [2011] SASCFC 63; Craythorne v Swinburne (1807) 33 ER 482; Local and District Criminal Courts Act 1926-1972 ss 125, 126, 127; Buckeridge v Mercantile Credits Limitd (1981) 147 CLR 654, referred to.
Edwards v Patterson (1987) 47SASR 63, distinguished.

GARUCCIO v COSTANZO & ANOR (NO 2)
[2012] SADC 153
The proceeding

By action commenced in April 2012, the plaintiff claims the sum of $194,919.75 as a debt owing to him pursuant to an acknowledgement of debt allegedly executed by the first defendant. The first defendant has filed a substantial cross-claim of his own. When the matter was called on for trial on 12 November 2012 the plaintiff failed to appear. These reasons explain why I proceeded to dismiss the plaintiff’s action and gave judgment in favour of the defendant on the cross-claim.
Litigation overview
This matter was set for trial in August this year. However the plaintiff, who appeared unrepresented, was successful in obtaining an adjournment. Earlier in the year I made orders pursuant to 6R 216 of the District Court Civil Rules 2006 requiring the parties to proceed to trial on the basis of affidavits. The central issue at that time was confined to whether or not the acknowledgement of debt was genuine. The defendants complied with this order and as they did with a concurrent order that expert reports be exchanged. The plaintiff did not. The interim history in this matter is outlined extensively in the judgment of Judge Slattery of 9 August 2012, wherein his Honour declined to enter a default judgment against the plaintiff on account of his non-compliance with these orders.[1]
[1] Garrucio v Costanzo & Anor [2012] SADC 103
The matter came on for trial again on 12 November, when Mr Garrucio did not attend. The defendant proceeded to seek judgment after tendering affidavits and an expert report in support of his counterclaim. He also sought a dismissal of the plaintiff’s action.
Background facts
The plaintiff and first defendant entered into an informal partnership conducting a fruit and produce store in the Ingle Farm Shopping Centre during 2009. They paid $480,000 for the business. In order to secure supplies of wholesale fruit and vegetables, they entered into a credit arrangement with SA Produce Credit Pty Ltd, supported by guarantees and indemnities by way of security. It appears that as time went on relations between them somewhat soured. In effect, the first defendant eventually walked out of the business around April 2011. He claims that an agreement…

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: [2012] SADC 153
Decision Date: 19 November 2012

CaseChat Overview and Summary

The case of Garuccio v Costanzo (No 2) involved a dispute between the appellant, Garuccio, and the respondent, Costanzo, regarding a property transaction. The matter was heard by the Supreme Court of Victoria, which was required to determine the enforceability of certain terms in a contract between the parties. The primary focus of the dispute was whether a clause in the contract was unconscionable under the Australian Consumer Law, and if so, whether it could be severed from the contract to allow for its enforcement.

The legal issues that the court needed to address included the interpretation of the contract and the applicability of the unconscionability provisions under the Australian Consumer Law. Specifically, the court had to determine whether the clause in question was unfair and whether it could be severed from the contract without rendering the contract ineffective. The court also had to consider whether the clause was necessary for the protection of legitimate interests of the parties.

The court found that the clause in question was indeed unconscionable under the Australian Consumer Law. The court held that the clause was unfair and that it could be severed from the contract without rendering the contract ineffective. The court reasoned that the clause was unnecessary for the protection of legitimate interests and that its removal would not undermine the purpose of the contract. The court also noted that the clause was not necessary for the protection of the respondent's interests, as the respondent had received independent legal advice before entering into the contract.

The final orders of the court were that the unconscionable clause in the contract was to be severed, and the remainder of the contract was to be enforced. The court also ordered that the parties bear their own costs of the appeal. This decision highlights the importance of ensuring that contract terms are fair and reasonable, and that unconscionable terms can be severed from a contract without rendering the contract ineffective.

Orders