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…

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: [2007] NSWSC 957
Decision Date: 22 August 2007

CaseChat Overview and Summary

The case of Cavasinni v Cavasinni (No 2) involved the parties, the plaintiff and the defendant, engaged in a dispute regarding adjustments to a costs order and a specific aspect of accounting between them. The matter was heard in the Family Court of Australia, where the plaintiff sought alterations to the costs order and a particular accounting matter that had been previously decided upon. The dispute arose after the reasons for the judgment had been published but before the orders were formally entered.

The legal issues before the court centred on the plaintiff's request to amend, vary, or set aside certain aspects of the costs order and the accounting between the parties. The court had to consider the appropriate circumstances under which such adjustments could be made, particularly in light of sections 56 and 60 of the Civil Procedure Act 2005. The plaintiff's request was made post-publication of the reasons for judgment but before the orders were entered, raising questions about the timeliness and appropriateness of the adjustments sought.

The court found that it was within its authority to make adjustments to the orders under the given circumstances. It considered the relevant statutory provisions and the small amount of money involved in the dispute. The court concluded that the trial judge had the discretion to alter the orders, taking into account the need for fairness and the specific context of the case. The court determined that the adjustments sought by the plaintiff were appropriate, leading to a modification of the original orders.

The final orders of the court involved the adjustment of the costs order and a specific aspect of the accounting between the parties. The court's decision was based on its assessment of the statutory provisions and the particular facts of the case, ensuring that the adjustments were made in a manner that was just and equitable.

Orders