Blanda v Forno - [2006] NSWSC 1396

CITATION: Blanda v Forno [2006] NSWSC 1396

HEARING DATE(S): 11 December 2006

JUDGMENT DATE :
11 December 2006

JURISDICTION: Equity

JUDGMENT OF: Campbell J

EX TEMPORE JUDGMENT DATE: 12/11/2006

DECISION: Parties to bring in Short Minutes

CATCHWORDS: PROCEDURE – Supreme Court procedure – award of interest on the principal amount of a judgment – contractual obligation to pay a sum of money – when cause of action accrues – SUCCESSION – EXECUTORS AND ADMINISTRATORS – specific legacy – entitlement to intermediate income – rationale for rule – CONTRACT – vendor and purchaser – contractual obligation on purchaser to pay certain legal costs and Capital Gains Tax to vendor simultaneously with transfer – construction of such a clause – CONTRACT – vendor and purchaser – delay in settlement – as from what date one party entitled to damages for delay from the other – PROCEDURE – costs – assessment in a gross amount – when appropriate – CONTRACT – otherwise, questions of construction of a particular contract

LEGISLATION CITED: Civil Procedure Act 2005
Supreme Court Act 1970

CASES CITED: George Attenborough & Son v Solomon & Anor [1913] AC 76
O’Brien v McCormick [2005] NSWSC 619
Sherborne Estate (No.2); Vanvalen and Another v Neaves and Another; Gilroy v Neaves and Another (2005) 65 NSWLR 268

PARTIES: Salvatore Blanda - Plaintiff
De Anne Lee Forno - Defendant

FILE NUMBER(S): SC 2627/06

COUNSEL: D Kelly - Plaintiff
R Freeman - Defendant

SOLICITORS: McLachlan Chilton - Plaintiff
Hunt & Hunt - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EQUITY LIST

CAMPBELL J

11 DECEMBER 2006

2627/06 SALVATORE BLANDA v DE ANNE LEE FORNO

JUDGMENT

1 HIS HONOUR: Simon Blanda died prematurely on 1 September 2001. He left behind, from his birth family, his parents, a brother, and a sister. He also left behind a de facto wife, De Anne Forno. There was litigation in the Probate List between those that Mr Simon Blanda had left behind, about entitlement to administration of his estate. In that litigation Ms Forno was the plaintiff, and the Blandas were the defendants, and cross-claimants. There was a hearing before his Honour Justice Palmer which eventually settled on 20 December 2002.

The Terms of Settlement

2 The terms of the settlement involved the making of a declaration that Ms Forno was the de facto spouse of the late Mr Blanda and that Mr Blanda had died intestate.

3 There were orders for the grant of letters of administration to Ms Forno, and for releasing of rights that various of the members of the birth family of Simon Blanda might have had against the estate. There were orders for certain items to be returned to the plaintiff simultaneously with a particular transfer of real estate, for the amended statement of claim to otherwise be dismissed, and for the cross-claim to be dismissed.

4 There was an order for the defendants to bear their own costs of the proceedings. There was also an order 11 that…

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.

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Details

Case: [2006] NSWSC 1396
Decision Date: 11/12/2006

CaseChat Overview and Summary

The case of Blanda v Forno arose in the Supreme Court of New South Wales, involving a dispute between the plaintiff, Blanda, and the defendant, Forno. The plaintiff claimed interest on the principal amount of a judgment debt, entitlement to intermediate income from a specific legacy, and sought damages for delay in settlement of a property purchase. Additionally, the case addressed the interpretation of contractual obligations between the vendor and purchaser regarding payment of legal costs and Capital Gains Tax, and the assessment of costs in a gross amount.

The legal issues before the court included determining the point at which the cause of action accrued for the award of interest on a judgment debt, the rationale behind the entitlement to intermediate income from a specific legacy, the construction of a contractual clause mandating the simultaneous payment of certain costs and taxes at transfer, and the date from which damages for delay in settlement should be calculated. Furthermore, the court had to consider the appropriateness of assessing costs in a gross amount.

The court found that the cause of action for the award of interest accrued from the date of the judgment, rather than from the date the underlying debt was due. Regarding the specific legacy, the court held that the plaintiff was entitled to the intermediate income, as the rationale for the rule supported such entitlement. The clause in the contract mandating the simultaneous payment of legal costs and Capital Gains Tax was construed to mean that these obligations were to be fulfilled at the time of transfer, regardless of the settlement date. As for the damages for delay in settlement, the court ruled that they should be calculated from the date the settlement was due, rather than the date of the judgment. Finally, the court determined that assessing costs in a gross amount was appropriate in this case due to the nature of the proceedings.

The final orders of the court included the award of interest on the principal amount of the judgment debt, entitlement to intermediate income from the specific legacy, and damages for delay in settlement. The court also directed that costs were to be assessed in a gross amount.

Orders