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Anthony Murdaca v Vincent Pizzinga

Anthony Murdaca v Vincent Pizzinga

Case [2013] NSWSC 396 26 April 2013

Standing

Dismissal of Proceedings

Civil Litigation & Procedure

Type to search within this case.

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Anthony Murdaca v Vincent Pizzinga [2013] NSWSC 396
Hearing dates: 19 November 2012
Decision date: 26 April 2013
Before: Bellew J
Decision:
1.The proceedings are dismissed.
2.The plaintiff is to pay the defendant's costs

Catchwords: PRACTICE AND PROCEDURE - application to dismiss proceedings - plaintiff bringing action for negligence against former solicitor - plaintiff previously bankrupt - whether plaintiff's right to bring proceedings against solicitor was property which vested in his trustee upon the making of the sequestration order - whether such right was re-assigned to the plaintiff by the trustee - whether plaintiff's action for personal injury was maintainable on the basis that it was independent of his property rights - proceedings not maintainable by the plaintiff - proceedings dismissed
Legislation Cited: Bankruptcy Act 1966
Civil Liability Act 2002 (New South Wales)
Conveyancing Act 1919
Limitation Act 1969 (New South Wales)
Cases Cited: Batistatos v Roads and Traffic Authority of NSW [2006] HCA 27; (2006) 227 ALR 425
Charles Forte Investments Ltd v Amanda [1964] Ch 240
Cox v Journeaux and Ors [No 2] [1935 HCA 48; (1935) 52 CLR 713
General Steel Industries Inc v Commissioner for Railways New South Wales [1964] HCA 69; (1964) 112 CLR 125
Daemar v Industrial Commission of New South Wales and Ors (1988) 12 NSWLR 85
Daemar v Industrial Commission of New South Wales and Anor [No 2] (1990) 22 NSWLR 178
Gunns v Marr [2005] VSC 251
Mannigel v Hewlett Phelps [1991] NSWCA 186
Murdaca v RAMS Mortgage Corporation Limited [2007] NSWSC 512
Norman v Federal Commissioner of Taxation [1963] HCA 21; (1963) 109 CLR 9
Pegler v Dale (1975) 1 NSWLR 265
Piwinski v Corporate Trustees of the Diocese of Armidale (1975) 1 NSWLR 265; (1975) 6 ALR 62)
Shelton v National Roads and Motorists Association Limited (2004) 51 ACSR 278
Category: Procedural and other rulings
Parties: Anthony Murdaca - Plaintiff / Applicant
Vincent Pizzinga - Defendant / Defendant
Representation: Mr L Robison - Plaintiff / Respondent
Mr P Arblaster - Defendant / Applicant
Colin Biggers and Paisley - Defendant / Applicant
Self represented - Plaintiff/Respondent

File Number(s): 2011/362962
Publication restriction: Nil

Judgment

INTRODUCTION

Before the court for determination is a notice of motion filed by the defendant on 14 May 2012. Although the notice of motion contains a number of prayers for relief, the orders sought in the hearing before me were limited to those set out in paragraphs (1), (2) and (3) which were in the following terms:

(1) that the proceedings be dismissed pursuant to r 13.4 of Uniform Civil Procedure Rules 2005 ("the rules");

(2) alternatively to order (1), an order that summary judgment be given in favour of the defendant pursuant to the inherent jurisdiction of the court;

(3) alternatively to orders (1) and (2), an order that the statement of claim be struck out pursuant to r 14.28 of the rules.

The plaintiff opposes the making of the orders sought.

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 Anthony Murdaca v Vincent Pizzinga

Details

AGLC: Anthony Murdaca v Vincent Pizzinga [2013] NSWSC 396
Case: [2013] NSWSC 396
Decision Date: 26 April 2013

CaseChat Overview and Summary

In the matter of Anthony Murdaca v Vincent Pizzinga, the plaintiff sought to bring an action for negligence against his former solicitor, Vincent Pizzinga. The plaintiff had previously been declared bankrupt, and the dispute centred on whether his right to bring proceedings against the solicitor was property that had vested in his trustee in bankruptcy upon the making of the sequestration order. Additionally, the court needed to determine whether this right had been re-assigned to the plaintiff by the trustee, and whether the plaintiff's action for personal injury could be maintained on the basis that it was independent of his property rights.

The central legal issues addressed by the court involved the nature of the plaintiff's right to bring proceedings against his former solicitor and whether this right was subject to the vesting of property in the trustee in bankruptcy. The court was required to assess whether the plaintiff's right to sue for negligence was property that had passed to the trustee in bankruptcy, and if so, whether this right had been re-assigned to the plaintiff. Furthermore, the court had to consider whether the plaintiff's personal injury action was sufficiently independent from his property rights to be maintainable.

The court found that the plaintiff's right to bring proceedings against his former solicitor was indeed a property right that vested in his trustee in bankruptcy upon the making of the sequestration order. As such, the plaintiff did not have the capacity to bring the action without the trustee's consent. The court also determined that the plaintiff's right had not been re-assigned to him by the trustee, and that the plaintiff's action for personal injury could not be maintained independently of his property rights. Consequently, the proceedings were dismissed.

The final orders of the court were that the application to dismiss the proceedings brought by Anthony Murdaca against Vincent Pizzinga was successful, and the proceedings were dismissed with no order as to costs.

Orders