Booth v Cerreto - [2017] NSWSC 468

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Booth v Cerreto & Ors [2017] NSWSC 468
Hearing dates: 24 April 2017
Date of orders: 24 April 2017
Decision date: 24 April 2017
Jurisdiction: Equity
Before: Slattery J
Decision:
Further directions given. Matter adjourned to 28 April 2017.

Catchwords: PRACTICE AND PROCEDURE - dispute regarding joint venture agreement - slow progress in proceedings - procedural issues for resolution - proceedings not ready for hearing or mediation - stark divergence in evidence - possibility of fraud - whether additional party to be joined as defendant - expert evidence may be required - joint venture at a stalemate - equity in properties being eroded - Court requires practitioners familiar with details of the case to appear before the Court on each occasion so that overriding purpose in Civil Procedure Act s 56 can be achieved - possibility of Court appointing receiver flagged should no progress be made by parties
Legislation Cited: Civil Procedure Act, s 56
Supreme Court Act 1970, s 67
Cases Cited: Tate v Barry (1928) 28 SR (NSW) 380
Texts Cited: JD Heydon, MJ Leeming and PG Turner, Meagher, Gummow & Lehane’s Equity: Doctrines & Remedies (5th ed 2014, LexisNexis Butterworths)
Category: Procedural and other rulings
Parties: Plaintiff: Millie Booth
Second Plaintiff: Grant William Booth
Third Plaintiff: Maria Immaculata Dominello
First Defendant: Norm Cerreto
Second Defendant: Antonio Salerno
Third Defendant: Arthur Street Facility Management Pty Limited
Fourth Defendant: Arthur St Build Group Pty Limited
Fifth Defendant: Australia and New Zealand Banking Group Limited
Sixth Defendant: Westpac Banking Corporation
Representation:
Counsel:

Plaintiff: J.A. Darvall

Solicitor:
Plaintiff: Frank Mercuri, Mercuri Lawyers
First to Fourth Defendants: Tina Mayury Domm, Go To Court Lawyers appearing for Mr Stefano Laface of AJL Legal

File Number(s): 2016/109465
Publication restriction: No

EX TEMPORE Judgment

Maria Immaculata Dominello was born in March 1934 at San Giovanni di Gerace, Italy. She migrated to Australia with her mother in 1948. She is now 83 years of age. She is presently living in a state of great uncertainty.
The property in which she is living, in Arthur Street, Ryde, is the subject of a disputed joint venture agreement. On either version of the joint venture agreement is it unclear what is her right, if any, to reside in the Ryde property. This uncertainty cannot be allowed to continue in the interests of these parties, and in particular Mrs Dominello.
The Court has decided to case manage these proceedings closely since they first came into the duty list on 2 March 2017. Since then, they have been adjourned to 7 April 2017, then to today for directions.
The Court has decided to intervene because the disputes between these parties, and these proceedings, have proceeded slowly and need now to rapidly resolve. Although there are major disputes between the parties about who was a party to, and what are the terms of, the joint venture agreement, it may readily be inferred from the circumstances that some joint venture was made. Both…

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 Booth v Cerreto

Details

AGLC: Booth v Cerreto [2017] NSWSC 468
Case: [2017] NSWSC 468
Decision Date: 24 April 2017

CaseChat Overview and Summary

The dispute in Booth v Cerreto arose from a joint venture agreement that had become stalled due to a lack of progress in the proceedings and procedural issues. The parties involved were Booth and Cerreto, and the case was heard in the Supreme Court. The primary issue before the court was whether the proceedings were ready for a hearing or mediation, and if not, what steps should be taken to address the procedural issues and slow progress.

The court was required to consider several legal issues, including the possibility of fraud, the need for an additional party to be joined as a defendant, and the potential requirement for expert evidence. The court also had to determine whether the joint venture had reached a stalemate and if the equity in the properties was being eroded. The overarching concern was ensuring that the overriding purpose of the Civil Procedure Act was being achieved, particularly in relation to the efficient disposal of cases.

In its decision, the court emphasised the need for practitioners familiar with the details of the case to appear before the court on each occasion to ensure the overriding purpose in Civil Procedure Act section 56 was being achieved. The court noted the stark divergence in evidence and the possibility of fraud, which required further investigation. Additionally, the court considered the potential need to appoint a receiver if no progress was made by the parties. Ultimately, the court found that the proceedings were not ready for a hearing or mediation, and it ordered the parties to address the procedural issues and slow progress in the case.

Orders