Cassaniti v Paragalli - [2006] NSWSC 50

CITATION: Cassaniti v Paragalli [2006] NSWSC 50

HEARING DATE(S): 9 February 2006

JUDGMENT DATE :
9 February 2006

JURISDICTION: Equity

JUDGMENT OF: Campbell J

EX TEMPORE JUDGMENT DATE: 02/09/2006

DECISION: Contract for monies to remain in controlled monies account still on foot.

CATCHWORDS: PRACTICE – judgments and orders – consent orders – consent orders settling Supreme Court litigation on terms of payment of money into controlled monies account to abide resolution of a dispute – Supreme Court proceedings dismissed – District Court proceedings commenced to determine the dispute – whether order for payment of money into controlled monies account was interlocutory – interlocutory orders terminating upon determination of the proceedings – consent orders as both orders and embodiment of a contract – whether contractual aspect of consent orders terminated by dismissal of Supreme Court proceedings – construction of consent orders by reference to surrounding circumstances

LEGISLATION CITED: Supreme Court Act 1970
Uniform Civil Procedure Act 2005

CASES CITED: Athens v Randwick City Council [2005] NSWCA 317
Green v Pulsford (1830) 2 Beav 69; 48 ER 1105
Harvey v Phillips (1956) 56 CLR 235
Kirkpatrick v Kotis [2004] NSWSC 1265; (2004) 62 NSWLR 567
Morgan v 45 Flers Avenue Pty Ltd (1987) 11 NSWLR 573
Paino v Hofbauer (1988) 13 NSWLR 193
Daniell's Chancery Practice, 7th edition
Kerr on Injunctions, 6th edition

PARTIES: Sam Peter Cassaniti - Plaintiff/Respondent
Michele Paragalli - First Defendant
Rocco Paragalli - Second Defendant
Antonio Paragalli - Third Defendant
Joseph Paragalli - Fourth Defendant/Applicant

FILE NUMBER(S): SC 5011/04

COUNSEL: I Young - Plaintiff/Respondent
M Oakes SC; D Bertini - Fourth Defendant/Applicant

SOLICITORS: Leonard Legal - Plaintiff/Respondent
Galluzzo Andriano Solicitors - Fourth Defandant/Applicant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY JUDGE LIST

CAMPBELL J

THURSDAY 9 FEBRUARY 2006

5011/04 SAM CASSANITI v MICHELE PARAGALLI

JUDGMENT – Ex Tempore

1 HIS HONOUR: Proceedings were begun in this Court on 13 September 2004 by the plaintiff against four defendants.

2 The plaintiff had at one stage, according to his own case, performed various services for the fourth defendant, in consequence of which he was entitled to a charge over certain property, including future property of the fourth defendant. He sought a declaration in the proceedings that he had a valid equitable mortgage over a particular item of property, a declaration that he was entitled to receive a mortgage in registrable form over that property, and an order for execution and delivery of such mortgage. He also sought an interlocutory order restraining the fourth defendant from encumbering his interest in the property, or alternatively, an order extending the caveat which had been placed over the property claiming that beneficial interest.

3 The matter was one concerning which there was an order for short service. It came back before me as Duty Judge on 15 September 2004. On that occasion, the legal representatives for the parties wrote out short minutes of order, as follows:

“By consent the Court orders:

1. Upon sale of the property situated…

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.

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Details

Case: [2006] NSWSC 50
Decision Date: 9 February 2006

CaseChat Overview and Summary

The matter between Cassaniti and Paragalli was before the court. The dispute centred around consent orders that had been made in the Supreme Court, which provided for the payment of money into a controlled monies account. These orders were made to settle the litigation between the parties pending the resolution of a broader dispute. The Supreme Court proceedings were subsequently dismissed, and the parties commenced District Court proceedings to determine the underlying dispute. The issue before the court was whether the order for the payment of money into a controlled monies account was interlocutory, and if so, whether it terminated upon the dismissal of the Supreme Court proceedings. The court had to determine whether the consent orders were merely interlocutory or if they had a contractual aspect that survived the dismissal of the Supreme Court proceedings.

The court considered the nature of consent orders, which can function both as orders and as an embodiment of a contract. It examined the surrounding circumstances of the case, including the terms of the consent orders and the intention of the parties. The court concluded that the consent orders were not purely interlocutory but had a contractual aspect that survived the dismissal of the Supreme Court proceedings. Consequently, the order for the payment of money into a controlled monies account remained in effect, and the parties were required to abide by the terms of the consent orders pending the resolution of the underlying dispute in the District Court proceedings.

The court's reasoning was based on the principle that consent orders, while having the force of court orders, also embody contractual obligations between the parties. The court found that the consent orders in this case were intended to have a lasting effect, even if the Supreme Court proceedings were dismissed. As a result, the order for the payment of money into a controlled monies account remained in force, and the parties were required to adhere to the terms of the consent orders until the underlying dispute was resolved. The Supreme Court proceedings were dismissed, and the District Court proceedings continued to determine the substantive dispute between the parties.

The court ordered that the Supreme Court proceedings be dismissed, and the District Court proceedings be allowed to continue. The order for the payment of money into a controlled monies account, as set out in the consent orders, remained in effect. The parties were directed to abide by the terms of the consent orders pending the resolution of the underlying dispute in the District Court.

Orders