Cassaniti v Katavic (No 2)

[2023] NSWCA 107

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Cassaniti v Katavic (No 2) [2023] NSWCA 107

Hearing dates:

27, 28 February 2023

Date of orders:

23 May 2023

Decision date:

23 May 2023

Before:

Gleeson JA at [1]
Kirk JA at [190]
Adamson JA at [191]

Decision:

CA 2022/261720 (Leave to appeal)

(1)   To the extent necessary, grant leave to appeal against the first and second respondents.

(2)   The summons seeking leave to appeal against the third respondent is dismissed, with costs.

CA 2022/204856 (Appeal proceedings)

(1)   The appellants’ notice of motion filed 2 February 2023 (par 5) is dismissed, with costs.

(2)   Refuse the appellants’ oral application to amend par 3 of the claims for relief in the amended notice of appeal to include proposed orders 14A and 14B and the reference in order 17 to proposed orders 14A and 14B. Otherwise grant leave to amend the claims for relief in the amended notice of appeal to include in order 17 in substitution for the proposed words “Orders 14A and 14B”, the words “the giving of security over the Moncrieff land in June 2017 as referred to in sub-par (a) of proposed Order 14B”.

(3)   Appellants to file an amended notice of appeal consistent with order (2) above within 7 days.

(4)   Appeal allowed in part in relation to the misleading conduct claim.

(5)   Set aside the declaration made by the primary judge on 15 June 2022 in par 5, and in lieu, dismiss the first and second respondents’ further amended statement of cross-claim filed 22 February 2022.

(6)   Otherwise dismiss the appeal against the first and second respondents.

(7)   Dismiss appeal against the third respondent.

(8)   The appellants to pay the third respondent’s costs of the appeal.

(9)   Direct the appellants to file and serve short written submissions on the question of costs in this Court within 14 days, the first and second respondents to file and serve their response within a further 14 days, and the appellants to file and serve any reply within a further 7 days. Any such submissions are not to exceed 3 pages. Note that the question of costs in this Court will be determined on the papers.

Catchwords:

CONTRACTS — Misleading conduct under statute — Misleading or deceptive conduct — Representations — Where unitholders’ agreement represented to be “standard” or “simple” — Where agreement contained unusual terms imposing high interest obligation on excess capital contributions — Where such terms inconsistent with prior informal agreement of parties

CONTRACTS — Misleading conduct under statute — Misleading or deceptive conduct — Reliance —Whether representee relied on representation given commercial imperatives — Where unitholders’ agreement signed in informal, quasi-familial context — Where representee would not have entered agreement had effect of impugned clauses been disclosed

CONTRACTS — Misleading conduct under statute — Misleading or deceptive conduct — Causation of loss — Where informal agreement not binding — Where claimants entered into unitholders’ agreement in reliance upon misrepresentation — Whether claimants proved probable counterfactual…