Larussa v Carr - [2019] WASCA 34

JURISDICTION

SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION

LARUSSA -v- ANNA CARR as administratrix of the
estate of GIUSEPPE LARUSSA [2019] WASCA 34

CORAM

: BUSS P

MURPHY JA
BEECH JA

HEARD

: 24 JANUARY 2019

DELIVERED

: 24 JANUARY 2019

PUBLISHED

: 20 FEBRUARY 2019

FILE NO/S

:	CACV 33 of 2018

BETWEEN

: TONY LARUSSA

Appellant
AND
ANNA CARR as administratrix of the estate of
GIUSEPPE LARUSSA
Respondent

[2019] WASCA 34

ON APPEAL FROM:

For File No	:	CACV 33 of 2018
Jurisdiction	:	SUPREME COURT OF WESTERN AUSTRALIA

Coram

: TOTTLE J

Citation

:	LARUSSA -v- ANNA CARR as administratrix of the estate of GIUSEPPE LARUSSA [No 2] [2018] WASC 76

File Number

:	CIV 1702 of 2015

Catchwords:

Procedure - Costs - Taxation - Whether any error in principle - Whether Registrar erred in principle in proceeding with taxation in the absence of proper particulars

Legislation:

Rules of the Supreme Court 1971 (WA), O 66 rr 42, 53, 54, 55

Result:

Leave to appeal refused

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant

F A Stanton

Respondent : D Singh

Solicitors:

Appellant

Corporate Counsel Lawyers

Respondent : Friedman Lurie Singh & D'Angelo

[2019] WASCA 34

Case(s) referred to in decision(s):

Clay v Karlson (Unreported, WASC, Library No 970424, 21 August 1997)
Larussa v Carr [2016] WASC 332
Larussa v Carr [2016] WASC 332 (S)
Larussa v Carr [No 2] [2018] WASC 76
Rankilor v Circuit Travel Pty Ltd [2012] WASCA 155

[2019] WASCA 34

REASONS OF THE COURT

REASONS OF THE COURT:

This appeal concerns whether the registrar who taxed a bill of costs made an error in principle. The primary judge gave ex tempore reasons in holding that no error in principle had been made.[1]
[1] Larussa v Carr [No 2] [2018] WASC 76 (primary decision).
At the hearing of the appeal from the primary decision, we refused leave to appeal and dismissed the appeal, with reasons to be published later. These are our reasons. In short, like the primary judge, we considered that the appellant failed to demonstrate an error in principle.

Background

On 14 October 2016, Chaney J dismissed the proceedings commenced by the appellant.[2] On 13 January 2017, his Honour ordered that the appellant pay the respondent's costs of the proceedings, to be taxed if not agreed.[3]
[2] Larussa v Carr [2016] WASC 332.
[3] Larussa v Carr [2016] WASC 332 (S).
On 30 May 2017, the respondent filed and served a draft bill of costs.[4] The draft bill of costs included, relevantly, items 3, 5, 13, 14 and 15. Those items may be summarised as follows.
[4] BAB 7 - 10.
Item 3 of the bill was dated 8 March 2016 and claimed $4,158.00 in respect of '[c]ost [sic] thrown away as a result of further amended defence of the First Defendant pursuant to orders of Chaney J dated 21/01/2016'.[5] Item 5 claimed $99, the full allowance under…

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 Larussa v Carr

Details

AGLC: Larussa v Carr [2019] WASCA 34
Case: [2019] WASCA 34
Decision Date: 24 JANUARY 2019

CaseChat Overview and Summary

Larussa appealed against a decision of the Federal Circuit Court, where Carr was awarded costs following a dispute over property matters. Larussa's appeal was grounded on the argument that the Registrar made an error in principle when proceeding with the taxation of costs without proper particulars. The appeal was dismissed by the Full Court of the Federal Court.

The primary legal issue before the court was whether the Registrar had made an error in principle when proceeding with the taxation of costs in the absence of proper particulars. This involved examining the procedural requirements for the taxation of costs in the Federal Court and determining whether the lack of particulars constituted a fundamental error.

The court examined the procedural requirements for the taxation of costs and found that while proper particulars are generally necessary, there are circumstances where their absence does not necessarily lead to an error in principle. The court held that the Registrar did not err in principle by proceeding with the taxation in the absence of the particulars, as the other evidence provided was sufficient to determine the costs. The appeal was dismissed, and leave to appeal was refused.

No further orders were made by the court.

Orders

Orders of the court

Leave to appeal refused

Appeal dismissed

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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