Romeo v Papalia

Case [2012] NSWCA 221


Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Romeo v Papalia & Ors [2012] NSWCA 221
Hearing dates:20 June 2012
Decision date: 26 July 2012
Before: Basten JA at 1;
Campbell JA at 2;
Sackville AJA at 3.
Decision:

The appeal is 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:

PRACTICE AND PROCEDURE - motion to adduce further evidence on appeal - whether primary judgment given after a "trial or hearing on the merits" within s 75A(8) of the Supreme Court Act 1970 - whether an interlocutory judgment is necessarily given without a trial or hearing on the merits - whether special grounds shown to receive further evidence - whether discretion to receive further evidence under s 75A(7) of the Supreme Court Act 1970 should be exercised in favour of the appellant.

AGENCY - solicitor and client - moneys borrowed by husband and wife - both sued by lenders - wife gives instructions to solicitor on her own behalf and on behalf of her husband - whether primary Judge correctly found that the solicitor was authorised to execute terms of settlement on behalf of the husband.
Legislation Cited: Evidence Act 1995 (Cth)
Civil Procedure Act 2005 (NSW)
Supreme Court Act 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Ainsworth v Wilding [1896] 1 Ch 673
Akins v National Australia Bank (1994) 34 NSWLR 155
Australian Securities and Investments Commission v Hellicar [2012] HCA 17; 286 ALR 501
AVS Australian Venue Security Services Pty Ltd v Criminale [2006] NSWCA 368
Aztech Science Pty Ltd v Atlanta Aerospace (Woy Woy) Pty Ltd [2005] NSWCA 319
Bailey v Marinoff [1971] HCA 49, 125 CLR 529
Carr v Finance Corporation of Australia Ltd (No 1) [1986] HCA 20; 147 CLR 246
Clark v State of New South Wales [2012] NSWCA 139
Commissioner of Taxation v Meredith (No 2) [2008] NSWCA 133; 75 NSWLR 462
DA Christie Pty Ltd v Baker [1996] 2 VR 582
De Bussche v Alt (1878) 8 Ch D 286
DJL v Central Authority [2000] HCA 17; 201 CLR 226
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89
Gamser v The Nominal Defendant [1977] HCA 7; 136 CLR 145
Hawkins Hill Gold Mining Co v Briscoe (1887) 8 NSWR (Eq) 123
Hoskins v Van Den-Braak (1998) 43 NSWLR 290
Jones v Dunkel [1959] HCA 8; 101 CLR 298
Kinch v Walcott [1929] AC 482
King Investment Solutions Pty Ltd v Hussain [2005] NSWSC 1076; [2006] ANZ Conv R 48
Langdale v Danby [1982] 1 WLR 1123

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Romeo v Papalia [2012] NSWCA 221
Case
[2012] NSWCA 221
Decision Date

CaseChat Overview and Summary

In *Romeo v Papalia*, the New South Wales Court of Appeal considered an appeal concerning the authority of a solicitor to execute terms of settlement on behalf of a husband, where the wife had provided instructions to the solicitor on behalf of both herself and her husband. The dispute arose from moneys borrowed by the husband and wife, who were both sued by lenders. The primary judgment had found that the solicitor was indeed authorised to act for the husband.

The Court of Appeal was required to determine whether the primary judgment was given after a "trial or hearing on the merits" for the purposes of section 75A(8) of the *Supreme Court Act 1970* (NSW), and whether an interlocutory judgment was necessarily given without such a hearing. Further, the Court had to consider whether special grounds were shown to receive further evidence on appeal, and if the discretion to receive further evidence under section 75A(7) of the *Supreme Court Act 1970* should be exercised in favour of the appellant.

The Court reasoned that the primary judgment was given after a hearing on the merits, as it involved the determination of the solicitor's authority to settle the proceedings on behalf of the husband. The Court found no basis to conclude that an interlocutory judgment is inherently not a judgment given after a hearing on the merits. Consequently, the Court held that the conditions for adducing further evidence under section 75A(8) were not met, and there were no special grounds to exercise the discretion under section 75A(7).

The appeal was dismissed with costs.

Orders

Orders of the court

The appeal is 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

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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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