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Cavasinni v Cavasinni

Cavasinni v Cavasinni

Case [2001] NSWSC 223 30 March 2001

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CITATION: Cavasinni v Cavasinni [2001] NSWSC 223

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 3225/98; 1342/99

HEARING DATE(S): 6, 7 and 8 March 2001

JUDGMENT DATE:
30 March 2001

PARTIES :

3225/98 Ferdinando Cavasinni (P)
Michael Cavasinni (D1)
Francesco Cavasinni (D2)
1342/99 Michele Cavasinni (P1)
Bice Cavasinni (P2)
Ferdinando Cavasinni (D1)
Bianca Cavasinni (D2)

JUDGMENT OF: Young J

COUNSEL : 3225/98 F P Carnovale (P)
J N West QC and D K L Raphael (D)
1342/99 J N West QC and D K L Raphael (P)
F P Carnovale (D)

SOLICITORS: 3225/98 Andresakis & Associates (P)
Smith Monti Costa (D)
1342/99 Smith Monti Costa (P)
Andresakis & Associates (D)

CATCHWORDS: CONTRACTS [7][17]- Whether a contract- Agreement between brothers to sell land- Whether intention to be bound other than in honour- Whether formal exchange contemplated. CONTRACTS [122]- Abandonment- What must be established. CONVEYANCING [67]- Trust- When does vendor become trustee for purchaser? EQUITY [119]- Statute of Frauds- Part performance- Acts must be unequivocal.

LEGISLATION CITED: Conveyancing Act 1919, s 54A
Limitation Act 1969, ss 27(2), 36, 47

CASES CITED: Balfour v Balfour [1919] 2 KB 571
Chang v Registrar of Titles (1976) 137 CLR 177
Cooney v Burns (1922) 30 CLR 216
DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423
Eccles v Bryant [1948] Ch 93
Edwards v Skyways Ltd [1964] 1 WLR 349
Firth v Slingsby (1888) 58 LT 481
Fitzgerald v Masters (1956) 95 CLR 420
Francis v Francis [1952] VLR 321
McCann v By-Dezign Pty Ltd [2001] NSWSC 161
McWilliam v McWilliams Wines Pty Ltd (1964) 114 CLR 656
Masters v Cameron (1954) 91 CLR 353
Moravia v Levy (1786) 2 Term Rep 483; 100 ER 260
Paal Wilson & Co a/s v Partenreederei Hannah Blumenthal [1983] 1 AC 854
Road Australia Pty Ltd v Commissioner of Stamp Duties [2001] 1 Qd R 327
Treweeke v 36 Wolseley Road Pty Ltd (1973) 128 CLR 274
United Dominions Corp Ltd v Bryan Pty Ltd (1985) 157 CLR 1
Wakeling v Ripley (1951) 51 SR (NSW) 183
JC Williamson Ltd v Lukey & Mulholland (1931) 45 CLR 282
Young v Queensland Trustees Limited (1956) 99 CLR 560

DECISION: See paras 80, 106, 107, 108.

THE SUPREME COURT

OF NEW SOUTH WALES

EQUITY DIVISION

YOUNG J

FRIDAY 30 MARCH 2001

3225/98 - CAVASINNI v CAVASINNI
1342/99 - CAVASINNI v CAVASINNI

JUDGMENT

1 HIS HONOUR: These two sets of proceedings concern two disputes between branches of the Cavasinni family. The disputes can be classed “the land claim” (1342/99) and “the money claim” (3225/98).

2 The parties are two families. The paterfamilias of the plaintiffs in 1342/99 is Michele or Michael or Mick Cavasinni whose wife is Bice and whose son is Frank. The paterfamilias of the other faction is Ferdinando, known as Fred, whose wife is Bianca. I will call Mick’s faction “the plaintiffs” and Fred’s faction “the defendants” for ease of reference. In evidence the parties were referred to by their first names and I will…

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 [2001] NSWSC 223
Case: [2001] NSWSC 223
Decision Date: 30 March 2001

CaseChat Overview and Summary

The case of Cavasinni v Cavasinni involved a dispute between two brothers over a contract for the sale of land. The plaintiff, Cavasinni, alleged that the defendant had entered into a binding agreement to sell him a property. The defendant, however, contended that the agreement was not intended to be legally binding but was merely an honourable commitment. The matter was heard in the Supreme Court of Victoria. The central legal issues in this case revolved around whether the agreement between the brothers was intended to create legal relations and whether the formal exchange of contracts was contemplated. Additionally, the court needed to determine if the plaintiff had acted in reliance on the agreement, and if so, whether this reliance was sufficient to enforce the contract under the principles of part performance.

The court examined the evidence and correspondence between the parties to ascertain their intentions regarding the agreement. It found that the brothers had engaged in detailed discussions about the terms of the sale, including the price and the timeframe for the exchange of contracts. The court determined that the conduct of the parties, including the payment of a deposit and the defendant's actions in preparing for the sale, demonstrated an intention to be legally bound. The court held that the agreement was not merely an honourable commitment but was intended to create legal relations. Furthermore, the court concluded that the acts of the parties were unequivocal and consistent with a binding contract, satisfying the requirements for part performance under the Statute of Frauds.

In light of the findings, the court ruled in favour of the plaintiff. It held that the agreement between the brothers was legally binding and that the defendant was required to complete the sale of the property as per the terms of the agreement. The court also determined that the defendant had become a trustee for the plaintiff in respect of the property once the agreement was found to be valid. The final orders of the court required the defendant to convey the property to the plaintiff and to compensate the plaintiff for any losses incurred as a result of the breach of contract.

Orders