Cassaniti v Ruse NSW Pty Ltd

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Cassaniti v Ruse NSW Pty Ltd [2017] NSWCA 285
Hearing dates:	26 October 2017
Date of orders:	26 October 2017
Decision date:	06 November 2017
Before:	McColl JA at [1]; Meagher JA at [1]; Emmett AJA at [1]
Decision:	Leave to appeal dismissed with costs.
Catchwords:	PROCEDURE – leave to appeal – whether circumstances in favour of granting leave to appeal – where question of fact not decided on separate determination also arises on trial of remaining issues – where that question subject to limited evidence on separate determination – where findings of fraud made on separate question although not pleaded or relevant – leave to appeal refused
Legislation Cited:	Civil Procedure Act 2005 (NSW) Real Property Act 1900 (NSW) Supreme Court Act 1970 (NSW)
Cases Cited:	American Home Assurance Co v Ampol Refineries Limited (1987) 10 NSWLR 13 Bass v Permanent Trustee Co Limited (1999) 198 CLR 334; [1999] HCA 9 Breskvar v Wall (1971) 126 CLR 376 Cassaniti v Ruse NSW Pty Limited [2017] NSWSC 499 David Syme & Co Ltd v Lloyd [1984] 3 NSWLR 346 Fidelitas Shipping Co Ltd v V/O Exportchleb [1966] 1 QB 630 Frazer v Walker [1967] 1 AC 569 Gerlach v Clifton Bricks Pty Limited (2002) 209 CLR 478; [2002] HCA 22 Nadinic v Drinkwater [2017] NSWCA 114 Young v Hones [2014] NSWCA 337
Category:	Procedural and other rulings
Parties:	Ivana Cassaniti (First Applicant) Gino Cassaniti (Second Applicant) Ruse NSW Pty Ltd (First Respondent) Armstrong Scalisi Holdings Pty Limited (Second Respondent) Raptor (Aust) Pty Ltd (Third Respondent) Leumeah (NSW) Pty Ltd (Fourth Respondent) Newton Road WP Pty Ltd (Fifth Respondent) David Salvatore Cassaniti (Sixth Respondent) Sam Peter Cassaniti (Seventh Respondent)
Representation:	Counsel: J E Thomson, K J Young (Applicants) M A Ashhurst SC, L D Corbett (Respondents)   Solicitors: Dormer Stanhope Lawyers (Applicants) Kemp Strang (Respondents)
File Number(s):	2017/159060
Publication restriction:	None.
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Equity Division Citation: [2017] NSWSC 499 Date of Decision: 1 May 2017 Before: Pembroke J File Number(s): 2015/377309

Headnote

[This headnote is not to be read as part of the decision]

The parties entered into a Deed of Release and Indemnity to resolve various legal disputes. That Deed expressly obliged two entities controlled by the sixth respondent to provide a first ranking mortgage over Torrens Title property. The registered proprietor of the property was not a party to the Deed, but the applicants alleged that the sixth respondent was the beneficial owner of the land. Subsequently, the property was transferred to the first respondent, a company controlled at the time by the sixth respondent.

The first applicant claimed to be entitled to an equitable mortgage over the property, by reason of the express and implied terms of the Deed, or those terms as rectified.

The primary judge, by consent, ordered that issues of construction in relation to the Deed be separately determined. When deciding those issues, his…