Giunti v Cavallaro

Case [2004] NSWCA 62
CITATION: Giunti & Ors v Cavallaro [2004] NSWCA 62
HEARING DATE(S): 9 February 2004
JUDGMENT DATE:
8 April 2004
JUDGMENT OF: Sheller JA at 1; Giles JA at 25; Santow J at 58
DECISION: (1) Extend time for filing application for leave to appeal up to and including the date of filing of the summons for leave to appeal; (2) Leave to appeal granted; (3) Appeal upheld; (4) Set aside the order for costs made by Barrett J on 27 September 2002 and in lieu thereof order the opponent to pay the claimant's costs of the proceedings; (5) The opponent to pay the claimants' costs of the application for leave to appeal and the appeal but to have a certificate under the Suitors' Fund Act 1951 if so qualified.
CATCHWORDS: Costs - order that defendant pay plaintiff's costs of proceedings - extension of time to apply for leave to appeal - communication through defendant's Italian lawyer - inference that significance of costs and of time for leave to appeal not appreciated - no evidence of prejudice - extension granted - leave granted - whether error in principle in costs order - error found in failure to pay sufficient regard to plaintiff's conduct in bringing about the need for the proceedings and in generating their length and complexity - analogy with testator's conduct in generating dispute over proof of will - different costs order made. D
CASES CITED: Re Bardon v Florence; Shekelton v Bardon (Holland J, Supreme Court of NSW, 15 December 1983);
Donald Campbell & Co v Pollak [1927] AC 732;
Re Cutcliffe's Estate; Le Duc v Veness [1959] P 6;
Gronow v Gronow (1979) 144 CLR 513;
House v The King (1936) 55 CLR 499;
Latoudis v Casey (1990) 170 CLR 534;
Maiden v Maiden (1908) 7 CLR 727;
In the Will of Millar (1908) VLR 682;
New South Wales Ministerial Corporation v Edkins (1998) 45 NSWLR 8;
Oshlack v Richmond River Council (1998) 193 CLR 72;
Spiers v English [1907] P 122;
Wentworth v Rogers (No 3) (1986) 6 NSWLR 642.

PARTIES :

 Santa Giunti, Leopoldo Antonino Giunti, Pietra Alfia Gounti - Claimants
Angelina Cavallaro - Opponent
FILE NUMBER(S): CA 40428/03
COUNSEL: C J Bevan - Claimants
M R Aldridge SC & P N Khandhar - Opponent
SOLICITORS: Turner Freeman - Claimants
Anderson Lawyers - Opponents
LOWER COURTJURISDICTION: Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S): ED 1532/01
LOWER COURT
JUDICIAL OFFICER : 		Barrett J


                          CA 40428/03
                          ED 1532/01

                          SHELLER JA
                          GILES JA
                          SANTOW JA

                          8 April 2004
GIUNTI & ORS v CAVALLARO
Judgment

1 SHELLER JA: I have had the benefit of reading in draft the reasons for judgment of Giles JA.

2 The claimants on this application for leave to appeal are the children of the late Agatina Giunti, an Italian resident, who died on 24 January 2000 in Mascali, Italy, intestate. The opponent is a sister of the deceased. Another sister was Iolana Calderone.…

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AGLC
Giunti v Cavallaro [2004] NSWCA 62
Case
[2004] NSWCA 62
Decision Date

CaseChat Overview and Summary

The appeal concerned an application by the defendant, Cavallaro, for an extension of time to seek leave to appeal an order made by Barrett J on 27 September 2002, which directed the defendant to pay the plaintiff's costs of the proceedings. The Court of Appeal, comprising Sheller and Giles JJA and Santow J, considered whether to grant this extension and, if leave were granted, whether the original costs order was erroneous.

The primary legal issues before the Court of Appeal were whether the defendant should be granted an extension of time to apply for leave to appeal, whether leave to appeal should be granted, and if so, whether the original costs order made by Barrett J contained an error of principle. Specifically, the court had to determine if Barrett J had failed to give sufficient regard to the plaintiff's conduct in initiating the proceedings and in contributing to their length and complexity when making the costs order.

The Court of Appeal reasoned that an extension of time was warranted due to the defendant's communication through an Italian lawyer, which suggested a potential lack of appreciation for the significance of the costs order and the time limits for seeking leave to appeal. No prejudice to the plaintiff was demonstrated. Upon granting leave to appeal, the court found an error in principle in the original costs order. Applying an analogy to cases involving a testator's conduct in generating disputes, the court concluded that the plaintiff's role in bringing about the need for the proceedings and their subsequent length and complexity had not been adequately considered.

Consequently, the Court of Appeal upheld the appeal, set aside the costs order made by Barrett J, and ordered that the defendant pay the plaintiff's costs of the proceedings. The defendant was also ordered to pay the plaintiff's costs of the application for leave to appeal and the appeal itself, with a provision for a certificate under the Suitors' Fund Act 1951 if the defendant qualified.

Orders

Orders of the court

(1) Extend time for filing application for leave to appeal up to and including the date of filing of the summons for leave to appeal; (2) Leave to appeal granted; (3) Appeal upheld; (4) Set aside the order for costs made by Barrett J on 27 September 2002 and in lieu thereof order the opponent to pay the claimant's costs of the proceedings; (5) The opponent to pay the claimants' costs of the application for leave to appeal and the appeal but to have a certificate under the Suitors' Fund Act 1951 if so qualified.

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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