John Murden v Emilio Calandra - [2015] NSWSC 424

Supreme Court

New South Wales

Medium Neutral Citation: John Murden v Emilio Calandra [2015] NSWSC 424
Hearing dates: 12 November 2014
Date of orders: 17 April 2015
Decision date: 17 April 2015
Jurisdiction: Common Law
Before: RS Hulme AJ
Decision:
1. The appeal is allowed.
2. The judgment and orders of Magistrate Pierce made on 22 October 2002 in Local Court proceedings 2013/13352 be set aside.
3. The Notice of Motion dated 15 May 2013 and filed in the Local Court proceedings on behalf of Emilio and Jeanelle Calandra be dismissed.
4. Emilio and Jeanelle Calandra to pay Mr Murden’s costs of and incidental to that Notice of Motion and the hearing thereof in the Local Court.
5. Emilio and Jeanelle Calandra to pay Mr Murden’s costs of and incidental to the proceedings in this Court.
Catchwords: PRACTICE – costs – cost assessor’s certificate of determination – consequences of filing – magistrate has no power to set aside - appeal from local court
Legislation Cited: Civil Procedure Act 2005 (NSW)
Legal Profession Act 2004 (NSW)
Legal Profession Act 1987 (NSW)
Limitation Act 1969 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Coshott v Barry [2012] NSWSC 850
Doyle v Hall Chadwick [2007] NSWCA 159
Frumar v The Owners of Strata Plan 36957 [2010] NSWCA 172
Weber v Aquaqueen International Pty Ltd [2013] NSWSC 1181
Category: Principal judgment
Parties: John Murden (Plaintiff)
Emilio Calandra (First Defendant)
Jeanelle Calandra (Second Defendant)
Representation:
Counsel:
B Toomey QC, P Glissan (Plaintiff)
PCB Semmler QC, S Tzouganatos (First and Second Defendants)
Solicitors:
TD Kelly & Co (Plaintiff)
Turner Freeman (First and Second Defendants)

File Number(s): 2013/320857

Judgment

These proceedings, commenced by summons on 24 October 2013, seek to set aside a decision of Magistrate Pierce in the Local Court made on 22 October 2013.
It is unnecessary to detail the, not inconsiderable, history of litigation involving the parties. It is sufficient to say that:

On 3 December 2012 a costs assessor issued to Mr Murden two Certificates of Determination of Costs, the total of those Certificates being $16,752.50. The persons by whom such costs were payable were Mr and Mrs Calandra.
On 10 December 2012 Mr Murden’s solicitors wrote to Mr and Mrs Calandra enclosing copies of the costs certificates, requiring payment and advising that if payment was not made it was intended to file the costs certificates for judgment. Mr and Mrs Calandra did not respond.
On 15 January 2015 a document entitled “Filing of Certificate of Order” annexing the separate certificates was filed in the Local Court. It seems to have been given number 2013/00013352 and a Registrar of the Local Court entered judgment in proceedings bearing the same number in favour of Mr Murden against Mr and Mrs Calandra in the sum of $16,752.50. The formal judgment says that it was made or given, and entered, on 15 January 2013 although below the Registrar’s facsimile signature is the date 25 January 2013.
On 15 May 2013 Mr and Mrs Calandra filed…

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.

Continue reading John Murden v Emilio Calandra

Details

AGLC: John Murden v Emilio Calandra [2015] NSWSC 424
Case: [2015] NSWSC 424
Decision Date: 17 April 2015

CaseChat Overview and Summary

The case of John Murden versus Emilio Calandra arose in the Local Court of New South Wales, where the plaintiff, John Murden, sought a review of a cost assessment made in a prior proceeding. The plaintiff was contesting the costs awarded to the defendant, Emilio Calandra, which had been certified by a cost assessor. The core issue was whether the Local Court magistrate had the authority to set aside the cost assessor's certificate of determination once it had been filed. This matter was appealed to the District Court of New South Wales.

The legal issue before the court was whether, after a cost assessor's certificate of determination had been filed, the magistrate of the Local Court possessed the jurisdiction to set aside that certificate. The plaintiff argued that the Local Court magistrate had the inherent power to correct errors and set aside improper determinations. The defendant contended that once the certificate was filed, it became a final and binding determination, and the court's powers were limited.

The court considered the statutory framework governing costs assessments and the inherent jurisdiction of the Local Court. It concluded that once a certificate of determination had been filed, it became a final and binding order, and the Local Court magistrate did not have the power to set it aside. The appeal was dismissed, reaffirming that the magistrate's power to intervene was restricted to instances before the certificate was filed. The court found that the appeal was without merit as the magistrate's actions post-filing were beyond their jurisdiction.

Orders