Calandra v Murden (No 2)

THE COURT: By notice of motion filed 26 August 2015, Mr Murden has applied for a certificate under the Suitors’ Fund Act 1951 (NSW) in respect of costs ordered against him by this Court: Calandra v Murden [2015] NSWCA 231. In order to explain why the motion should be dismissed, it is necessary to say something concerning the background of that appeal.

Mr Murden had caused to be filed in the Local Court a form headed “Filing of Certificate of Order” to which was attached two costs assessor’s certificates. That led to a judgment being entered in the Local Court against Mr and Mrs Calandra in the amount of $16,752.50. Mr Murden took those steps notwithstanding that he and Mr Calandra had entered into a deed of release and indemnity almost a year earlier. It was not in contest in this Court, or before the primary judge, that the subject matter of that release included the costs which were the subject of the costs certificates. Further, the consequence of the release of Mr Calandra was, as a matter of law, the release of Mrs Calandra (who was a joint obligor).

A Local Court Magistrate, following a hearing on the application of Mr and Mrs Calandra, set aside the judgment which Mr Murden had obtained. Mr Murden appealed on a question of law. At the hearing before the primary judge in the Supreme Court, the only question raised was whether the Magistrate had jurisdiction to set aside the judgment. The primary judge accepted that submission and allowed the appeal: John Murden v Emilio Calandra [2015] NSWSC 424.

This Court found that that conclusion was wrong, and that the judgment procured by Mr Murden was, in the language of UCPR r 36.15, entered “against good faith” and also entered “irregularly”, because there was no amount of unpaid costs in respect of which Mr Murden was entitled to judgment: at [20]. This Court said that “the form should not have been filed and ought not to have been accepted, had [Mr Murden] disclosed at the time of its filing that there was no amount of unpaid costs due”: at [21].

In general terms, the Suitors’ Fund Act provides a measure of compensation to the respondent to an appeal when an appeal is allowed through no fault of the respondent: Frost v Kourouche [2014] NSWCA 39; 86 NSWLR 214 at [48]. In the present case, Mr Murden procured a judgment to which he was not entitled, and further, persuaded the primary judge that there was no power in the Local Court to correct its record by setting aside the judgment which had been wrongly entered.

Mr Murden’s written submissions in support of his application for a certificate make no attempt to grapple with those matters, which were central to the appeal. Instead, Mr Murden’s submissions assert that there was no reason why this Court’s discretion should not, as a matter of course, be exercised so as to grant a certificate to him. To the contrary, the whole of this litigation, including a hearing before a Magistrate, an appeal to the primary judge, and a further appeal to this Court, has been brought about by Mr Murden first applying for a judgment to which he was not entitled, and then persuading the primary judge to adopt an erroneous submission. This is a stronger case than Frost v Kourouche for declining to grant a certificate.

The notice of motion filed 26 August 2015 must be dismissed.