Giurina v Owners Corporation - [2013] VSC 39

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

No. 4007 of 2012

ERMANNO GIURINA	Applicant
v
OWNERS CORPORATION No. 1579	First Respondent
and
MARIA RICOTTA	Second Respondent
and
MARIA PICONE	Third Respondent
and
GABRIELLE NEW	Fourth Respondent

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JUDGE:	McMILLAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 February 2013
DATE OF JUDGMENT:	18 February 2013
CASE MAY BE CITED AS:	Giurina v Owners Corporation
MEDIUM NEUTRAL CITATION:	[2013] VSC 39

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PRACTICE AND PROCEDURE – Appeal as to a costs order of an Associate Judge – Section 17A(2)(b) of the Supreme Court Act 1986 – Rule 77.06 of the Supreme Court (General Civil Procedure) Rules 2005 – Application to extend time to appeal – Whether an extension of time to appeal should be granted by the Court – Principles to be applied – Gallo v Dawson [1990] 93 ALR 479 – Simonsen v Legge [2010] WASC 238 (22 December 2010) – Leave refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	In person
For the Respondents	Ms B. Myers	Wisewould Mahony

HER HONOUR:

Introduction

The applicant, Mr Ermanno Giurina, seeks leave to appeal out of time from an order made on 10 October 2012 by the Honourable Lansdowne AsJ, being that he pay the respondents’ costs, including costs reserved, as taxed or agreed (‘costs order’).

The costs order was made after her Honour refused Mr Giurina’s application for leave to appeal against various interlocutory and final orders made by the Victorian Civil and Administrative Tribunal (‘VCAT’).[1]
[1]See Owners Corporation No 1579 v Giurina (Owners Corporation) [2012] VCAT 643 (1 May 2012) (Deputy President Lulham); Giurina v Owners Corporation No 1579 (Reasons for Decision, Lansdowne AsJ, 10 October 2012).

Factual Background

The first respondent in this proceeding is an Owners Corporation of a small residential property in Coburg North, comprising five lots. The other respondents are three of the Lot Owners of the said property in Coburg North.

In December 2004, Mr Giurina was appointed as an unpaid manager of the Owners Corporation.

On 17 February 2012, an application was made to the VCAT on behalf of the Owners Corporation against Mr Giurina, as respondent, seeking a declaration that his position as unpaid manager was terminated on 24 July 2011. Consequential orders were also sought, being that Mr Giurina deliver up the records of the Owners Corporation, and transfer control of the Owners Corporation’s bank account.

On 4 April 2012, the three Lot Owners, who are respondents in the present case, were given leave to be joined as additional applicants to the proceedings in the VCAT.

On 1 May 2012, Deputy President Lulham heard the proceedings, and on 31 May 2012, he delivered his reasons and made declarations and orders. The reasons, inter alia, declared that the management agreement between the Owners Corporation and Mr Giurina was terminated on 24 July 2011. The Deputy President also made declarations as to both a number of breaches of duty committed by Mr Giurina…

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: [2013] VSC 39
Decision Date: 18 February 2013

CaseChat Overview and Summary

Giurina v Owners Corporation involved an appeal concerning a costs order made by an Associate Judge. The dispute centred around the application to extend time to appeal the costs order. The Supreme Court was tasked with determining whether an extension of time to appeal should be granted. The court examined the relevant statutory provisions, specifically section 17A(2)(b) of the Supreme Court Act 1986, and considered the applicable rules, including rule 77.06 of the Supreme Court (General Civil Procedure) Rules 2005. The case hinged on the principles established in Gallo v Dawson and Simonsen v Legge, which guide the granting of extensions of time to appeal. The court ultimately found that the application for an extension of time to appeal should be refused. The reasoning involved a detailed analysis of the timeliness of the application and the merits of granting the extension in light of the relevant legal principles. Consequently, the appeal was dismissed, and no extension of time to appeal was granted.

Orders