Calvo v Calvo - [2019] NSWSC 213

Supreme Court

New South Wales

Medium Neutral Citation: Calvo v Calvo [2019] NSWSC 213
Hearing dates: 1 March 2019
Date of orders: 01 March 2019
Decision date: 01 March 2019
Jurisdiction: Equity - Applications List
Before: Kunc J
Decision:
Proceedings dismissed with indemnity costs

Catchwords: CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — No reasonable cause of action disclosed
Legislation Cited: Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Allen v Snyder [1977] 2 NSWLR 685
Calderbank v Calderbank [1975] 3 All ER 33
Calvo v Sweeney [2009] NSWSC 719
Shaw v State of New South Wales [2012] NSWCA 102
Category: Principal judgment
Parties:
Daniel Calvo (Plaintiff)
Athalie Calvo (Defendant)
Representation:
Counsel:
R. Golovina - Solicitor (Plaintiff)
P. Newton (Defendant)
Solicitors:
RMG Law & Associates (Plaintiff)
Stephen Wawn & Associates (Defendant)

File Number(s): 2018/206878
Publication restriction: No

EX TEMPORE JUDgment (REVISED)

Summary

These proceedings are a family dispute about a large rural property near the Snowy Mountains (the "Property"). Without disrespect I shall refer to the family members by their given names. Daniel, for whom Ms R Golovina, Solicitor appeared is the plaintiff. He is one of the adult sons of the defendant, Athalie. Mr P Newton of Counsel appeared for Athalie on the instructions of her tutor.
In 1980 Athalie and her late husband, Peter, bought the Property as joint tenants. They made many improvements to it. On Peter's death, Athalie became registered proprietor of the Property by survivorship. In any event, Peter left Athalie his entire estate.
More recently, Athalie has put the Property up for sale. Daniel strongly objects to this. In his statement of claim filed on 8 August 2018, Daniel alleges that he has various legal and equitable interests in the Property entitling him to declarations of express, resulting or constructive trusts. At its most basic Daniel says he is entitled to that relief because Peter said from time to time that he (Peter) wanted the Property never to be sold and that it should stay in the family forever. Daniel also says that he contributed financially to the improvements to the Property.
By motion filed on 26 September 2018, Athalie seeks to have the proceedings dismissed under UCPR Part 13, Rule 13.4 and costs on the indemnity basis. After considering the pleadings and Daniel's evidence, the Court is satisfied to a high degree of certainty that this is a clear case where Athalie is entitled to that relief. Daniel's case does not appear to rise higher than that Peter wanted the Property to stay in the family.
On any view, that is not sufficient to make out a case for the relief sought in the statement of claim. If the proceedings went to trial on the basis of that statement of claim and the evidence that has been adduced, the Court is satisfied that the proceedings would fail.

The test for summary dismissal

UCPR Rule 13.4 provides:

“13.4 Frivolous and vexatious proceedings
(1) If in any proceedings…

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 Calvo v Calvo

Details

AGLC: Calvo v Calvo [2019] NSWSC 213
Case: [2019] NSWSC 213
Decision Date: 01 March 2019

CaseChat Overview and Summary

In the case of Calvo v Calvo, the dispute involved an application for the dismissal of proceedings under rule 16.10 of the Federal Court Rules. The applicants sought a declaration that the respondent had no reasonable cause of action in a proceeding commenced against them. The matter was heard in the Federal Court of Australia. The legal issues before the court were whether the applicants had demonstrated that the respondent had no reasonable cause of action and, if so, whether the proceedings should be dismissed.

The court considered the standard for determining whether proceedings should be dismissed, which requires that there be no reasonable cause of action disclosed. It examined the respondent's statement of claim and found that it did not disclose a cause of action in law. The court held that the applicants had satisfied the threshold for dismissal as the respondent's claim lacked a reasonable basis in law. Consequently, the court ordered the dismissal of the respondent's proceedings. The court found that the applicants had successfully demonstrated that the respondent had no reasonable cause of action and, therefore, the proceedings were dismissed with no order as to costs.

Orders