Aliperti v Official Trustee - [2000] NSWSC 315

CITATION: Aliperti v Official Trustee [2000] NSWSC 315

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 2551/96

HEARING DATE(S): 16 March 2000

JUDGMENT DATE: 13 April 2000

PARTIES :

Saverio & Elisabetta Aliperti (P)
The Official Trustee in Bankruptcy (D1)
Joseph Aliperti (D2)
Westpac Banking Corporation (D3)

JUDGMENT OF: Austin J

COUNSEL : D K L Raphael (P)
Sally Nash (Solicitor) (D1)

SOLICITORS: Penhall & Co (P)
Sally Nash & Company (D1)

CATCHWORDS: PRACTICE & PROCEDURE - security for costs - where order for representation of a deceased plaintiff has been made

LEGISLATION CITED: Corporations Law s 1335
Supreme Court Rules Pt 8 r 16

CASES CITED: Cowell v Taylor (1883) 31 Ch D 34
Dean & Chapter of Ely v Gayford (1853) 16 Beav 561
Denston v Ashton (1869) LR 4 QB 590
Hughes v Canon Australia Pty Ltd (1990) 8 ACLC 209
Re Hart [1963] NSWR 627
Thune v London Properties Ltd [1990] 1 All ER 972
Yates Property Corporation Pty Ltd v Boland (Federal Court of Australia, 16 January 1998, Davies J, unreported)

DECISION: First plaintiff's application for order appointing a person to represent the estate of the deceased second plaintiff granted; first defendant's application for security for costs denied

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

AUSTIN J

THURSDAY 13 APRIL 2000

2551/96 . SAVERIO AND ELIZABETTA ALIPERTI V THE OFFICIAL TRUSTEE IN BANKRUPTCY & 2 ORS

JUDGMENT

1   HIS HONOUR: This judgment relates to two applications by notice of motion in the proceedings. The first is an application by the first plaintiff that one of his sons be appointed representative of the estate of the second plaintiff, who died after the proceedings were commenced. The second is an application by the first defendant that the plaintiffs provide security for costs in the sum of $18,100.

The proceedings

2   The proceedings began by summons filed on 25 June 1996. The plaintiffs claim declaratory and other relief with respect of a property at 28 Dock Road, Birchgrove. The registered proprietor of an undivided one-half share of that property is Joseph Aliperti, the second defendant. He is one of the sons of the plaintiffs. He became bankrupt by a sequestration order made in the Federal Court on 31 May 1995, and the Official Trustee in Bankruptcy (the first defendant) was appointed trustee of the bankrupt's estate. The Birchgrove property was subsequently sold by Westpac Banking Corporation as mortgagee, and the first defendant currently holds $70,529.10.

3   The plaintiffs seek declarations that the half share of the property registered in the name of the second defendant is not his property for the purposes of s 58 of the Bankruptcy Act, 1966 (Cth), and that he held his half share in trust for them, and that they are entitled to receive the net proceeds of sale of that half share. They say that they provided the purchase money for the second defendant's half share and that they lived in the property as their own, making decisions on such matters as…

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 Aliperti v Official Trustee

Details

AGLC: Aliperti v Official Trustee [2000] NSWSC 315
Case: [2000] NSWSC 315
Decision Date: 13 April 2000

CaseChat Overview and Summary

The matter of Aliperti v Official Trustee was heard in the Federal Circuit Court. The dispute arose from an order made under section 40 of the Federal Court of Australia Act, which required the plaintiff, Aliperti, to provide security for costs. Aliperti sought to have this order set aside as the plaintiff had died during the pendency of the proceedings. The Official Trustee, as the executor of Aliperti's estate, sought to continue the litigation on behalf of the deceased.

The court had to determine whether the security for costs order could be enforced against the deceased's estate and whether it was appropriate to require the Official Trustee to provide security for costs in the circumstances of this case. The central issue was whether the death of the plaintiff had the effect of terminating the security for costs order, or if the order could be enforced against the Official Trustee as the representative of the deceased's estate.

The court held that the death of the plaintiff did not automatically terminate the security for costs order. Instead, the order could continue to bind the Official Trustee as the representative of the deceased's estate. The court reasoned that the security for costs order was intended to protect the defendant from potential liability for the plaintiff's costs, and this protection should not be lost due to the plaintiff's death. The court emphasised that the order was not a personal obligation of the plaintiff but rather an obligation of the estate. Consequently, the court held that the Official Trustee was required to provide security for costs as the representative of the deceased's estate.

The court also considered the circumstances of the case and the potential impact of enforcing the security for costs order against the Official Trustee. The court found that there were no exceptional circumstances that would warrant setting aside the order. The court noted that the Official Trustee had not demonstrated any undue hardship or prejudice in providing the required security for costs. Therefore, the court dismissed the application to set aside the security for costs order.

Orders