Cassaniti v Katavic - [2023] NSWCA 32

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Cassaniti v Katavic [2023] NSWCA 32
Hearing dates: 27 February 2023
Date of orders: 28 February 2023
Decision date: 28 February 2023
Before: Gleeson JA; Kirk JA; Adamson JA
Decision:
(1) That paragraphs 2, 3 and 4 of the notice of motion filed 2 February 2023 be dismissed with costs.
(2) That further to order 3 made by Macfarlan JA on 10 November 2022, of the funds held in Court for the second respondent, Antalija Developments No 4 Pty Ltd, as trustee for the Antalija Unit Trust, the amount of $100,000 be paid out of Court to the second respondent.

Catchwords:
APPEALS — Procedure — Injunction pending appeal — application to restrain respondent trustee using monies ordered to be paid out of Court for payment of legal costs in defending appeal — Where no application to discharge or vary orders made by single judge of appeal for payment of monies out of Court to the trustee — Whether circumstances had materially changed since order made — Supreme Court Act 1970 (NSW), s 46(4)

Legislation Cited:
Supreme Court Act 1970 (NSW), s 46(4)

Cases Cited:
McGinn v Cranbrook School [2016] NSWCA 226
Reliance Financial Services Pty Ltd v Antalija Developments (No 4) Pty Ltd [2022] NSWSC 519
Transglobal Capital Pty Ltd v Yolarno Pty Ltd (2004) 60 NSWLR 143; [2004] NSWCA 136

Category: Procedural rulings
Parties: Sam Cassaniti (First appellant)
Nancy Morvillo (Second appellant)
Dennis Katavic (First respondent)
Antalija Developments No 4 Pty Ltd (Second respondent)
Jocelyn Katavic (Third respondent)
Representation:
Counsel:
Mr M Ashhurst SC / Mr D A Allen
Mr T Alexis SC / Mr A L Oakes
Solicitors:
McEvoy Legal (Appellants)
Kamy Saeedi Law (Respondents)

File Number(s): 2022/204856; 2022/261720
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity Division

Citation:

[2022] NSWSC 519

Date of Decision:

2 May 2022

Before:

Robb J

File Number(s):

2022/204856; 2022/261720

Judgment

THE COURT: Before the Court on the concurrent hearing of an application for leave to appeal and an appeal is a notice of motion filed 2 February 2023 by which the appellants seek interlocutory relief in relation to funds paid into Court pursuant to the asset preservation orders made in the proceedings below (presently totalling $1,022,846.70). Paragraphs 2, 3 and 4 of the motion seek the following orders:

2.   The Second Respondent be restrained from applying any of the funds paid into Court in the first instance proceedings 2019/00372019 by Westpac, the sixth defendant in those proceedings, on 29 November 2019 (Funds in Court) for the legal costs of these proceedings in the Court of Appeal and the proceedings at first instance, until the determination of the appeal.
3.   In order to give effect to order 2, the Funds in Court be retained by the Court until determination of the appeal.
4.   The Second Respondent, the trustee of the Antalija Unit Trust, be restrained from applying any trust property of the Antalija Unit Trust…

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 Cassaniti v Katavic

Details

AGLC: Cassaniti v Katavic [2023] NSWCA 32
Case: [2023] NSWCA 32
Decision Date: 28 February 2023

CaseChat Overview and Summary

The applicants, Cassaniti and others, sought an injunction to restrain the respondent trustee, Antalija Developments No 4 Pty Ltd, from using funds ordered to be paid out of court for the payment of legal costs in defending an appeal. The application was heard by Gleeson, Kirk, and Adamson JJA of the Supreme Court of New South Wales.

The central legal issue before the Court was whether the circumstances had materially changed since orders were made by Macfarlan JA on 10 November 2022, which permitted the payment of monies out of court to the respondent trustee. The applicants contended that the trustee should be restrained from using these funds to cover legal costs associated with the appeal, implying a change in circumstances or a need to vary the earlier order.

The Court considered the application in light of s 46(4) of the Supreme Court Act 1970 (NSW), which deals with the power to grant injunctions. The Court noted that no application had been made to discharge or vary the existing orders made by Macfarlan JA. Without evidence of a material change in circumstances since those orders were made, the Court found no basis to grant the injunction sought by the applicants.

Consequently, the Court dismissed the applicants' notice of motion with costs. The Court also confirmed that, in accordance with the order of Macfarlan JA, $100,000 of the funds held in court for the second respondent, Antalija Developments No 4 Pty Ltd, as trustee for the Antalija Unit Trust, was to be paid out of court to the second respondent.

Orders

Orders of the court

(1) That paragraphs 2, 3 and 4 of the notice of motion filed 2 February 2023 be dismissed with costs.

(2) That further to order 3 made by Macfarlan JA on 10 November 2022, of the funds held in Court for the second respondent, Antalija Developments No 4 Pty Ltd, as trustee for the Antalija Unit Trust, the amount of $100,000 be paid out of Court to the second respondent.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Cassaniti v Katavic [2023] NSWCA 32
Hearing dates:	27 February 2023
Date of orders:	28 February 2023
Decision date:	28 February 2023
Before:	Gleeson JA; Kirk JA; Adamson JA
Decision:	(1) That paragraphs 2, 3 and 4 of the notice of motion filed 2 February 2023 be dismissed with costs. (2) That further to order 3 made by Macfarlan JA on 10 November 2022, of the funds held in Court for the second respondent, Antalija Developments No 4 Pty Ltd, as trustee for the Antalija Unit Trust, the amount of $100,000 be paid out of Court to the second respondent.
Catchwords:	APPEALS — Procedure — Injunction pending appeal — application to restrain respondent trustee using monies ordered to be paid out of Court for payment of legal costs in defending appeal — Where no application to discharge or vary orders made by single judge of appeal for payment of monies out of Court to the trustee — Whether circumstances had materially changed since order made — Supreme Court Act 1970 (NSW), s 46(4)
Legislation Cited:	Supreme Court Act 1970 (NSW), s 46(4)
Cases Cited:	McGinn v Cranbrook School [2016] NSWCA 226 Reliance Financial Services Pty Ltd v Antalija Developments (No 4) Pty Ltd [2022] NSWSC 519 Transglobal Capital Pty Ltd v Yolarno Pty Ltd (2004) 60 NSWLR 143; [2004] NSWCA 136
Category:	Procedural rulings
Parties:	Sam Cassaniti (First appellant) Nancy Morvillo (Second appellant) Dennis Katavic (First respondent) Antalija Developments No 4 Pty Ltd (Second respondent) Jocelyn Katavic (Third respondent)
Representation:	Counsel: Mr M Ashhurst SC / Mr D A Allen Mr T Alexis SC / Mr A L Oakes Solicitors: McEvoy Legal (Appellants) Kamy Saeedi Law (Respondents)
File Number(s):	2022/204856; 2022/261720
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Division Citation: [2022] NSWSC 519 Date of Decision: 2 May 2022 Before: Robb J File Number(s): 2022/204856; 2022/261720