Cavasinni v Cavasinni (No 2)

[2007] NSWSC 957

CITATION:	Cavasinni v Cavasinni (No 2) [2007] NSWSC 957
HEARING DATE(S):	22/8/07
JURISDICTION:	Equity Division
JUDGMENT OF:	Young CJ in Eq
EX TEMPORE JUDGMENT DATE:	22 August 2007
DECISION:	Calculations in previous judgment with respect to accounting between the parties and costs adjusted.
CATCHWORDS:	PROCEDURE [490]- Judgments and orders- Amending, varying and setting aside following publication of reasons but before entry of orders- Plaintiff seeks adjustment of costs order and of one aspect of accounting between parties- Appropriate for trial judge to adjust orders bearing in mind ss 56 and 60 of Civil Procedure Act 2005 and small amount of money involved.
LEGISLATION CITED:	Civil Procedure Act 2005, ss 56, 60
CASES CITED:	260 Oxford Street Pty Ltd v Premetis [2006] NSWCA 96 Brew v Followmont Transport Pty Ltd (No 1) [2005] 2 Qd R 354 Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 2) (1998) 29 ACSR 290 Twenty-First Australia Inc v Shade (Young J, 31.7.1998, unreported) Wentworth v Rogers [2002] NSWSC 921 Wentworth v Woollahra Municipal Council (1982) 149 CLR 672
PARTIES:	Ferdinando Cavasinni (P) Michael Cavasinni (D1) Francesco Cavasinni (D2)
FILE NUMBER(S):	SC 3225/98
COUNSEL:	F P Carnovale (P) D K L Raphael and S J Duggan (D1 & 2)
SOLICITORS:	A B Mezzanotte Lawyers (P) Costa & Associates (D1 & 2)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Wednesday 22 August 2007

3225/98 – CAVASINNI v CAVASINNI (NO 2)

JUDGMENT

1 HIS HONOUR: These proceedings commenced in 1998. They involve a dispute between branches of the Cavasinni family, the principal opponents being Frank, the son of Mick Cavasinni, for whom today Mr D Raphael and Mr S J Duggan of counsel appeared, and Fred, who is Mick's brother and Frank's uncle, for whom Mr F Carnovale appeared.

2 The proceedings were dealt with by me in 2001. I gave judgment on 30 March 2001, but all I did was refer the matter to a Master to take accounts.

3 Unfortunately, that reference occupied some six years and, on 28 July 2006, Associate Justice McLaughlin gave reasons on the enquiry, finding that a sum of $154,907 was due from Fred and Mick to Frank, plus interest of $242,378.

4 The Associate Judge's judgment is coded [2006] NSWSC 755. The report of the enquiry was submitted to me and various aspects of the enquiry were traversed. The result was that I gave reasons on 20 June 2007, coded [2007] NSWSC 619, which set out what adjustments I considered needed to be made in the reasons which the learned Associate Judge had given.

5 The matter was then stood over for short minutes of order to be brought in. On the return day it was indicated to me that there was unhappiness with some aspects of my reasoning and, in due course, counsel filed further written submissions as to how the calculations forecast in my judgment should be adjusted, and I am indebted to both sets of counsel for that.

6 The submissions were made by Mr Carnovale on 13 July 2007 and by Mr Raphael and Mr Duggan on 15 August 2007, which will be kept with the papers. However, this morning counsel very helpfully conferred and some of the differences between them were eliminated, so that there are now left for final decision two matters: (a) what is the proper way of treating the sale proceedings of the old red house; and (b) what is the proper order as to costs.

7 The preliminary point is that Mr Raphael and Mr Duggan submit that I have already made my decision, and I should be very wary about reopening or varying it. This is an exceptional step to be exercised with great caution; see Wentworth v Woollahra Municipal Council (1982) 149 CLR 672 at 684 and Wentworth v Rogers [2002] NSWSC 921.

8 I fully appreciate that submission, but it must always be remembered, as I have said before, see eg Twenty-First Australia Inc v Shade (31.7.1998, unreported) and Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 2) (1998) 29 ACSR 290, 293, that it is far better where there is a problem seen about a judgment and where the order has not been entered, for the trial judge to deal with the matter rather than let either or both parties appeal the case. What I have said has been approved in Queensland; see Brew v Followmont Transport Pty Ltd (No 1) [2005] 2 Qd R 354 and also see 260 Oxford Street Pty Ltd v Premetis [2006] NSWCA 96. Indeed, it is a fortiori the case where leave to appeal will be needed because of the amount involved, and where one's overriding statute contains provisions such as ss 56 and 60 of the Civil Procedure Act 2005. Accordingly, in my view, I should look at the problems that have been raised by Mr Carnovale.

9 Mr Carnovale says that in respect of what has been called in the earlier judgment "the old red house", the only finding of fact has been that Frank received the proceeds. Frank's accounting showed that he had distributed the proceeds, and the way in which the proceeds had been distributed was to be put in the D'Aroma account, which was the clearing account to pay construction expenses.

10 In his affidavit of 29 June 2004, Fred did not accept that. There was cross-examination of Frank, with the paper work of the relevant accounts, and there was no identification as to where in the accounts the alleged distribution appeared. However, the learned Associate Judge did not make a finding of fact. He held that the issue was irrelevant. In para 36 of my reasons of 20 June 2007, I said, having referred to para 49 of the Associate Judge's reasons, that:

“Mr Carnovale says that the learned Associate Judge fell into error here. However, the accounts do show that the proceeds from the sale of the old red house were treated as having been split three ways and being part of the parties' contribution to capital. In my view the learned Associate Judge correctly so treated it."

11 Mr Raphael and Mr Duggan say that was a finding of fact. With respect, I do not consider it was. The statement merely is that that is the way in which Frank's accounts stated it. In my view, what Mr Carnovale puts is correct. The only clear fact was that Frank received the proceeds of the sale of the old red house. He asserted that it had been distributed. That was denied. He could not identify where the money had actually gone into the account he said it had gone into. No-one had found any fact on that and, accordingly, the state of the evidence was that the money had been received by Frank and should be accounted for by him. I agree with Mr Carnovale's written submissions that the account needed to be adjusted accordingly.

12 The next question is the question of costs. I dealt with these in my judgment of 20 June 2007, commencing at para 58, though the final consideration occurs from about para 70. There I said that the prima facie rule was that each of Frank, Mick and Fred would pay one-third of the total assessed costs. I then said:

“The question that goes through my mind is whether this should be adjusted either against Frank because he did not do as he said he would and keep the accounts or against Fred because he was largely unsuccessful."

13 I then said that the first point did not worry me too much, and that it seemed to me it would be appropriate to order that Mick and Frank between them pay half the costs of the proceedings and Fred the other half of the costs.

14 The written submissions of Mr Carnovale put that the various matters which I had mentioned in paras 68 to 71 involved some matters which Mr Carnovale courteously called "slips". He said that when making the overall assessment the court was under the misapprehension that Fred had been largely unsuccessful in terms of the outcome of the taking of the accounts, whereas when one looks at it, especially looking at it after the decision I had already made on the little red house, the final outcome of the accounts is that Fred has to pay Frank only $35,488. This is very much less than what appeared to be the situation earlier on.

15 I think that those submissions are correct, despite what is said by Mr Raphael and Mr Duggan in their written submissions and, accordingly, in my view the final order is that in accordance with the short minutes attached to Mr Carnovale's submissions, which I will initial.

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