Pannozzo v Fowler - [2013] NSWCA 269

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Pannozzo v Fowler [2013] NSWCA 269
Hearing dates: 13 August 2013
Decision date: 23 August 2013
Before: Ward JA at [1]
Leeming JA at [2]
Hammerschlag J at [3]
Decision:
Appeal dismissed with costs
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:
PROCEDURE - whether failure to afford procedural fairness - where solicitor ceased to act - where trial proceeded in defendant's absence - whether notice given to defendant - whether adequate evidence tendered to prove no notice was given to defendant - whether miscarriage of discretion in proceeding in defendant's absence

PROCEDURE - whether appeal can succeed on grounds not pleaded at trial - where defendant not present at trial - where defendant filed no defence or inadequate pleadings or particulars at trial
APPEAL AND NEW TRIAL - whether failure to give adequate reasons
Legislation Cited: Conveyancing Act 1919
Uniform Civil Procedure Rules 2005
Cases Cited: Cameron v Cole (1944) 68 CLR 571
Clark Equipment Credit of Australia Ltd v Kiyose Holdings Pty Ltd (1988) 21 NSWLR 160
Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389
Ho v Powell (2001) 51 NSWLR 572
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Category: Principal judgment
Parties: Paul Pannozzo (Applicant)
Fiona Mary Fowler (Respondent)
Representation: Counsel:
J Garnsey QC with J Sleight (Applicant)
J H Stephenson (Respondent)
Solicitors:
Mercuri & Co (Applicant)
Norwest Family Law (Respondent)

File Number(s): CA 2012/316703, 2012/396943
Decision under appeal

Jurisdiction:

9101

Citation:

Fiona Mary Fowler v Paul Pannozzo

Date of Decision:

2012-06-27 00:00:00

Before:

Olsson DCJ

File Number(s):

DC 2011/116778

Judgment

Ward JA: I agree with Hammerschlag J.

Leeming JA: I agree with Hammerschlag J.

Hammerschlag J: This is an appeal against a judgment of the District Court of New South Wales (Olsson DCJ) given on 27 June 2012 in favour of the respondent against the appellant for $418,783 and costs ("the judgment").

BACKGROUND

The appellant was the financial advisor to the respondent and her husband. He was the sole director and secretary of AME Investments Pty Ltd ("AME"), to which the respondent, at his suggestion, lent money.

There were two loans.

On or about 6 May 2005 the respondent advanced $125,000 to AME ("the first advance") pursuant to an oral agreement made in a conversation between the appellant and the respondent in which the appellant said words to the following effect:

I know a builder that owns land at Speers Point. He is constructing Villas and looking for investors. The return is 12% paid monthly with the capital repaid in eight months.…

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] NSWCA 269
Decision Date: 23 August 2013

CaseChat Overview and Summary

In *Pannozzo v Fowler*, the New South Wales Court of Appeal considered an appeal from a judgment entered in the absence of the defendant. The central dispute concerned whether the trial judge had erred in proceeding with the trial and entering judgment without the defendant being present, and whether the defendant had been afforded procedural fairness. The appeal also raised questions about whether grounds of appeal not pleaded at trial could be considered, and whether the trial judge had provided adequate reasons for the judgment.

The Court of Appeal was required to determine whether the trial judge had failed to afford procedural fairness to the defendant by proceeding to trial in the defendant's absence. This involved assessing whether adequate notice of the trial date had been given to the defendant, and if not, whether the trial judge had sufficient evidence before them to conclude that no notice was given. Furthermore, the Court had to consider whether the trial judge had exercised their discretion appropriately in proceeding with the trial in the defendant's absence, and whether the appeal could succeed on grounds that were not raised in the defendant's pleadings or at the trial itself.

The Court of Appeal dismissed the appeal, finding that the trial judge had not erred. The reasoning focused on the fact that the defendant's solicitor had ceased to act for the defendant, and that the trial judge had been satisfied that reasonable steps had been taken to notify the defendant of the trial date. The Court held that the evidence before the trial judge was adequate to support the conclusion that the defendant had not been notified. Regarding the new grounds of appeal, the Court indicated that while it had the power to consider them, they did not provide a basis for overturning the trial judge's decision. The Court also found no deficiency in the reasons provided by the trial judge.

Orders

Orders of the court

Appeal dismissed with costs

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Pannozzo v Fowler [2013] NSWCA 269
Hearing dates:	13 August 2013
Decision date:	23 August 2013
Before:	Ward JA at [1] Leeming JA at [2] Hammerschlag J at [3]
Decision:	Appeal dismissed with costs [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	PROCEDURE - whether failure to afford procedural fairness - where solicitor ceased to act - where trial proceeded in defendant's absence - whether notice given to defendant - whether adequate evidence tendered to prove no notice was given to defendant - whether miscarriage of discretion in proceeding in defendant's absence PROCEDURE - whether appeal can succeed on grounds not pleaded at trial - where defendant not present at trial - where defendant filed no defence or inadequate pleadings or particulars at trial APPEAL AND NEW TRIAL - whether failure to give adequate reasons
Legislation Cited:	Conveyancing Act 1919 Uniform Civil Procedure Rules 2005
Cases Cited:	Cameron v Cole (1944) 68 CLR 571 Clark Equipment Credit of Australia Ltd v Kiyose Holdings Pty Ltd (1988) 21 NSWLR 160 Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 Ho v Powell (2001) 51 NSWLR 572 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Category:	Principal judgment
Parties:	Paul Pannozzo (Applicant) Fiona Mary Fowler (Respondent)
Representation:	Counsel: J Garnsey QC with J Sleight (Applicant) J H Stephenson (Respondent) Solicitors: Mercuri & Co (Applicant) Norwest Family Law (Respondent)
File Number(s):	CA 2012/316703, 2012/396943
Decision under appeal	Jurisdiction: 9101 Citation: Fiona Mary Fowler v Paul Pannozzo Date of Decision: 2012-06-27 00:00:00 Before: Olsson DCJ File Number(s): DC 2011/116778