Graziano v Graziano - [2010] SASC 320

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
GRAZIANO v GRAZIANO
[2010] SASC 320
Reasons for Decision of Judge Lunn a Master of the Supreme Court
18 November 2010
PROCEDURE
Application to set aside allocatur entered under 6R 271(4) after appellant’s failure to respond to the respondent’s short form claim for costs under 6R 271(1) – nature of allocatur and whether a default judgment – no proof of any merits in resisting quantification of the costs – application refused.

PROCEDURE
Review under 6R 21 of act of Registrar in issuing an allocatur for costs under 6R 271(4) – whether fresh evidence – review dismissed.

GRAZIANO v GRAZIANO
[2010] SASC 320
JUDGE LUNN:
Reasons on appellant’s application to set aside an allocatur

The appellant[1] as plaintiff sued the respondent[2] as defendant in a civil action in the District Court. On 14 January 2008, partway through the trial of that District Court action, the appellant issued a summons in this Court seeking permission to appeal against two alleged interlocutory orders made by the Trial Judge in the District Court action, and extensions of time to appeal against those orders. On 27 May 2008, Bleby J dismissed all of the appellant’s applications and appeals and ordered that the appellant pay the respondent’s costs of the appeal to be taxed.[3]
[1]    That is Bruno Graziano.
[2]    That is Antonio Graziano.
[3]    This order was amended into that form, nunc pro tunc, by an order made by Bleby J on 6 October 2010.
On 4 August 2010 pursuant to 6R 271(1) the respondent’s solicitors filed a short form claim for their costs under the order of 27 May 2008 claiming $84,336.70. It was duly served upon the appellant’s solicitors. The appellant made no response to it. As a result of a request made by the respondent’s solicitors to the Registrar under 6R 271(5), on 3 September 2010 the Registrar sealed an allocatur, FDN13, which was in the following terms:
It is Certified that by default the costs payable herein by the Appellant to the Respondent have been fixed at $84,336.70 and that sum is now payable for costs by the Appellant to the Respondent.
On 15 September 2010 the appellant issued an application, FDN15, that this allocatur be set aside, or in the alternative:
… that the sealed Allocatur signed by the Court on 2 [sic] September 2010 in this action be reviewed.[4]
It was supported by an affidavit of the appellant saying that he had received the claim for costs[5] from his solicitors on 6 August 2010 and that his solicitor had then sought instructions from him to deal with it. He did not depose to what, if any, advice he had received from his solicitor about the claim. He deposed to a belief about the costs waiting until an appeal to the Full Court from the final judgment of the District Court action had been disposed of, which has still not occurred.
[4] There was a reference to 6R 21 which is apparently…

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: [2010] SASC 320
Decision Date: 18 November 2010

CaseChat Overview and Summary

The case of Graziano v Graziano involved an application to set aside an allocatur entered by the respondent following the appellant’s failure to respond to the respondent’s short form claim for costs under section 6R 271(1) of the relevant legislation. The respondent sought to enforce the allocatur by applying under section 6R 271(4). The matter was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the allocatur constituted a default judgment, and if so, whether it could be set aside under the relevant rules. The court also considered whether the appellant had any merit in resisting the quantification of the costs claimed by the respondent. The court was required to balance the procedural fairness to the appellant against the need to enforce the costs provisions effectively.

The court held that the allocatur did not amount to a default judgment as it did not determine any substantive rights or obligations between the parties. However, the court found that the appellant had not provided any evidence or argument to challenge the respondent’s claim for costs, thereby failing to meet the burden of proof. The court emphasised that the appellant’s failure to respond to the claim for costs, coupled with the absence of any merits in resisting the quantification, warranted the enforcement of the allocatur. Consequently, the application to set aside the allocatur was refused.

The court ordered that the appellant pay the respondent’s costs as set out in the allocatur, reflecting the respondent’s successful enforcement of the costs claim.

Orders