Rapuano v Karydis-Frisan

[2013] SASCFC 8

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

RAPUANO v KARYDIS-FRISAN & ANOR

[2013] SASCFC 8

Judgment of The Full Court

(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Anderson)

28 February 2013

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - BY LEAVE OF COURT - GENERALLY

Application for permission to appeal against a costs order made by a District Court Judge.

Held:  Permission to appeal granted.

Rapuano T/A Raps Electrical v Karydis-Frisan & Anor (No 2) [2012] SADC 177, considered.

RAPUANO v KARYDIS-FRISAN & ANOR
[2013] SASCFC 8

Full Court:       Gray, Sulan and Anderson JJ

THE COURT

1. Franco Rapuano trading as Raps Electrical, the plaintiff in District Court proceedings, seeks permission to appeal in respect of a costs order made by the District Court Judge following the trial of those proceedings.  This Court reviewed the papers in private and referred the application into Court for oral argument.  Leave was given to the defendants in the District Court proceedings, Antonia Karydis-Frisan and Joe Frisan, to file and serve a draft notice of cross-appeal which they will pursue in the event that permission to appeal is granted. 

2. The plaintiff in the District Court claimed on a quantum meruit for electrical work undertaken in the course of the construction of the defendant’s house.  The plaintiff recovered judgment in the sum of $34,996.00 together with interest of $3,500.00, making a total recovery of $38,496.00.  In the course of the Judge’s reasons, he was critical of the credibility and reliability of the parties. 

3. The plaintiff sought costs on the basis that as he was successful in the action, an order for costs should follow the event.  The defendants contended that they should recover costs, drawing attention to a filed offer as well as unfiled offers and various written and verbal settlement negotiations.

4. The Judge considered the terms of a filed offer, the admissibility and relevance of unfiled pre-action offers, Calderbank letters and other unfiled offers that did not fall within rule 33 of the District Court Civil Rules 2006 (SA) which were not open or otherwise did not expressly waive confidentiality.  The Judge, in his considered reasons, identified that he had taken into account everything put on the topic of costs and the totality of the circumstances of the proceeding.  The Judge concluded his ruling on costs as follows:[1]

   In the final analysis, in the exercise of the Court’s discretion, I order that,

   1.   Subject to any other costs orders made to date,

   2.   The defendants pay 70% of the plaintiff’s costs up to and including 16 December 2009, on a party/party basis.

   3.   The plaintiff pay 85% of the defendants’ costs subsequent to 16 December 2009, on a party/party basis.

   [Footnotes omitted.]

   [1]    Rapuano T/A Raps Electrical v Karydis-Frisan & Anor (No 2) [2012] SADC 177, [119].

5. The plaintiff submitted that this Court should grant permission to appeal.  It was submitted that the Judge erred in his consideration of the filed offer.  It was said that the offer did not comply with the District Court Civil Rules in several respects.  It was contended that the offer purported to resolve rights of action unrelated to matters alleged in the proceedings, that the offer did not comply with the terms of rule 187(3)(a) of the District Court Civil Rules and, finally, that the offer was uncertain in effect and did not permit the entry of judgment by consent.

6. The defendants, in opposing the grant of permission, submitted that in the course of his reasons for judgment on the claim, the Judge was critical of the plaintiff and, in particular, made findings which were said to be tantamount to findings of fraud.  It was said that in the event that permission is granted, the defendants would seek to cross-appeal to contend that an order should be made that the plaintiff pay their costs of the action on an indemnity basis.

7. In our view permission to appeal should be granted.  The proposed appeal raises matters of substance.  Important issues of law arise concerning the effect of offers to settle on the Court’s discretion as to costs.  We consider that, on the appeal, the entire question of costs is open for review and, in these circumstances, the defendants should be entitled to lodge and pursue their cross-appeal. 

8. We order that the plaintiff be granted permission to appeal against the order of costs made by the District Court Judge on 7 December 2012.  The defendants have liberty to cross-appeal.