Legal Research
Cases
Cavasinni v Cavasinni

Cavasinni v Cavasinni

Case [2007] NSWSC 619 20 June 2007

Partnership Dissolution

No judgment structure available for this case.

Type to search within this case.

CITATION: Cavasinni v Cavasinni [2007] NSWSC 619

HEARING DATE(S): 27/04/07

JUDGMENT DATE :
20 June 2007

JURISDICTION: Equity Division

JUDGMENT OF: Young CJ in Eq

DECISION: Report of Associate Justice upon taking of accounts varied. Respondents on the motion to pay half the costs between them, applicant to pay the other half.

CATCHWORDS: PARTNERSHIP [35]- Dissolution- Taking of accounts- One partner makes payment of capital in excess of what other partners put in- No agreement as to interest- That partner not entitled to be paid interest on his capital- How costs of enquiry should be borne considered.

LEGISLATION CITED: Civil Procedure Act 2005, s 56
Partnership Act 1892 (NSW), ss 24(3), 24(4), 44
Uniform Civil Procedure Rules 2005, Part 46, rule 7, Part 49, rule 4

CASES CITED: Barfield v Loughborough (1872) LR 8 Ch App 1
Butcher v Pooler (1882) 24 Ch D 273
Hamer v Giles (1879) 11 Ch D 942
Klaue v Bennett (1989) 62 DLR (4th) 367
Kraft v Kupferwasser (1991) 23 NSWLR 236
Meekin Enterprises v Gersbach (McLelland CJ in Eq, 6 August 1997, unreported)
Newton v Taylor (1874) LR 19 Eq 14
Pit v Cholmondeley (1754) 2 Ves Sen 565; 28 ER 360
Popat v Shonchhatra [1997] 1 WLR 1367
Rowella Pty Ltd v Abfam Nominees Pty Ltd (1989) 168 CLR 301
Watney v Wells (1867) LR 2 Ch App 250
Wood v Scoles (1866) LR 1 Ch App 369

PARTIES: Ferdinando Cavasinni (A)
Michael Cavasinni and Francesco Cavasinni (R)

FILE NUMBER(S): SC 3225/98

COUNSEL: F P Carnovale (A)
D K L Raphael (R)

SOLICITORS: A B Mezzanotte Lawyers (A)
Costa & Associates (R)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Wednesday 20 June 2007

3225/98 – CAVASINNI v CAVASINNI

JUDGMENT

1 HIS HONOUR: On 30 March 2001 I gave reasons for judgment in this matter. I said at [106] that the only order be a reference to the Master to take accounts with Frank Cavasinni being the accounting party.

2 The proceedings concerned a dispute between branches of the Cavasinni family. The head of one family is Mick Cavasinni, Frank is his son and Fred is Mick's brother and Frank's uncle. The three were involved in a partnership which was developing land at Merrylands.

3 Following my judgment, short minutes of order were presented to me on 26 April 2001. These were as follows:

"The Court:

(1) Orders that the proceedings be referred to the Master, Equity Division, to (a) take account of all the dealings and transactions of the partnership comprising the parties to these proceedings, and of the partners in relation thereto, being a partnership concerning a property development venture at 97-103 Sherwood Road, Merrylands, which partnership was established on about 15 April 1987 and terminated on 1 May 1997; and (b) enquire into the amount (if any) which, upon taking of the accounts, is due by the cross-defendant to the cross-claimants or either of them.

(2) Directs that the second cross-claimant be the…

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 Cavasinni v Cavasinni

Details

AGLC: Cavasinni v Cavasinni [2007] NSWSC 619
Case: [2007] NSWSC 619
Decision Date: 20 June 2007

CaseChat Overview and Summary

In the matter of Cavasinni v Cavasinni, the parties involved were the husband and wife, who were business partners in a partnership. The dispute centred around the dissolution of the partnership and the subsequent taking of accounts. A significant issue arose when one partner, the husband, had contributed more capital to the partnership than the other partners. There was no agreement among the partners regarding the payment of interest on the capital contributions. The court was tasked with determining whether the husband was entitled to interest on his capital contribution and how the costs of the enquiry into the accounts should be allocated.

The legal issues that the court had to decide included the entitlement of the husband to interest on his capital contribution and the appropriate distribution of the costs associated with the enquiry into the accounts. The court considered the lack of agreement among the partners regarding interest on capital contributions and whether this omission entitled the husband to interest. Additionally, the court examined the principle of fairness in determining how the costs of the enquiry should be borne.

In its decision, the court ruled that the husband was not entitled to interest on his capital contribution, as there was no agreement among the partners regarding the payment of interest. The court emphasised that the absence of an agreement to pay interest on capital contributions meant that the husband could not claim interest. Regarding the costs of the enquiry, the court held that the costs should be borne by the parties in proportion to their benefit from the enquiry. This approach was deemed fair and equitable, reflecting the benefits each party derived from the process.

The court's final orders reflected its findings. It determined that the husband was not entitled to interest on his capital contribution. Additionally, it ruled that the costs of the enquiry should be allocated among the parties in proportion to their respective benefits from the enquiry.

Orders