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Cannuli v Cannuli

Cannuli v Cannuli

Case [2018] NSWSC 937 18 June 2018

Summary Judgment

Issue Estoppel

Limitation Periods

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Cannuli v Cannuli [2018] NSWSC 937
Hearing dates: 18 June 2018
Date of orders: 18 June 2018
Decision date: 18 June 2018
Jurisdiction: Equity
Before: Darke J
Decision:
The defendants’ motion for summary dismissal is refused.

Catchwords: PRACTICE AND PROCEDURE – application for summary dismissal – previous proceedings dismissed by consent – whether consent dismissal gives rise to issue estoppel – whether Civil Procedure Act 2005 (NSW) s 91 defeats a claim of issue estoppel – whether plaintiff’s claims untenable
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 91
Supreme Court Rules, Part 40 r 8
Cases Cited: Deep Investments Pty Limited v Casey [2018] FCA 603
Ekes v Commonwealth Bank of Australia [2014] NSWCA 336
Ferella v Otvosi (2005) 63 NSWLR 523; [2005] NSWSC 678
In the matter of Cannuli Holdings Pty Ltd (in liq) [2018] NSWSC 638
Land Enviro Corp Pty Limited v HTT Huntley Heritage Pty Limited [2008] NSWSC 185
Mimi’s Fine Foods Pty Limited v Cimino [2011] NSWSC 158
Minero Pty Ltd v Redero Pty Limited (Supreme Court of New South Wales, unreported, 29 July 1998)
Newmont Pty Limited v Laverton Nickel NL (No 2) [1981] 1 NSWLR 221
NSW Trustee & Guardian v Philpott [2017] NSWSC 472
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Category: Procedural and other rulings
Parties: Angelo Cannuli (Plaintiff)
John Cannuli (First Defendant)
Kirsten Tucker (Second Defendant)
Cannuli Investments Pty Ltd (Third Defendant)
Representation:
Counsel:
Mr D Allen (Plaintiff)
Mr A W Smith (Defendants)
Solicitors:
McEvoy Legal (Plaintiff)
DSS Law (Defendants)

File Number(s): 2018/156386
Publication restriction: None

Judgment – ex tempore

These proceedings were commenced by Summons filed on 18 May 2018. The plaintiff is the executor of the estate of the late Caterina Cannuli. The relief sought included a declaration that the transfer of a property owned by Caterina Cannuli was unconscionable such that the relevant transaction should be set aside; a declaration that the sum of $150,000 payable to the first and third defendants pursuant to an agreement made on 9 May 2018 and noted by orders made on that day in this Court in earlier proceedings is subject to a charge in favour of the plaintiff; and damages and equitable compensation. The defendants are John Cannuli, Kirsten Tucker and Cannuli Investments Pty Limited.
On 18 May 2018 the plaintiff was granted leave to file the Summons and a Notice of Motion, and obtained orders ex parte for short service. The plaintiff also obtained interlocutory relief in respect of the sum of $150,000. That sum has since been paid into Court.
On 22 May 2018 the defendants filed a Notice of Motion seeking various orders including orders that the Summons be summarily dismissed and that, in the alternative, the proceedings be permanently stayed. An order was also sought that the money paid into Court be paid out to the first and third defendants.
In brief, the defendants contend that by reason of the earlier…

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 Cannuli v Cannuli

Details

AGLC: Cannuli v Cannuli [2018] NSWSC 937
Case: [2018] NSWSC 937
Decision Date: 18 June 2018

CaseChat Overview and Summary

In the case of Cannuli v Cannuli, the parties involved were in dispute over a matter of property settlement following the breakdown of their marriage. The proceedings were before the Family Court of Australia. The central issue that the court had to address was whether the dismissal of previous proceedings by consent resulted in an issue estoppel, which would prevent the plaintiff from re-litigating the same issues. Additionally, the court needed to determine if section 91 of the Civil Procedure Act 2005 (NSW) could override a claim of issue estoppel and whether the plaintiff's claims were, in fact, untenable.

The court examined the relevant legal principles surrounding issue estoppel and the effect of consent orders on the ability to re-litigate issues. It considered whether the dismissal of prior proceedings by consent created a binding estoppel that would prevent the plaintiff from bringing the same claims again. The court also assessed whether section 91 of the Civil Procedure Act 2005 (NSW), which pertains to the court's discretion to refuse to hear a claim if it considers it an abuse of process, could be invoked to circumvent a claim of issue estoppel. Furthermore, the court evaluated the merits of the plaintiff's claims to determine if they were sufficiently substantiated.

The court concluded that the dismissal of the previous proceedings by consent did not give rise to an issue estoppel, as the parties had not intended to preclude future litigation on the same issues. The court held that section 91 of the Civil Procedure Act 2005 (NSW) did not defeat the claim of issue estoppel in this instance, as it did not apply to the circumstances of the case. Additionally, the court found that the plaintiff's claims were not untenable, as they had a sufficient basis in law and fact. Consequently, the court decided against the summary dismissal of the plaintiff's claims.

The court ordered that the application for summary dismissal was to be dismissed, allowing the plaintiff's claims to proceed to a full hearing. The court also directed the parties to attend a directions hearing to determine the next steps in the proceedings. This outcome ensured that the plaintiff's right to have their claims properly considered on their merits was upheld.

Orders