Ceccattini v ICM 2000 Pty Ltd - [2000] NSWCA 357

CITATION: Ceccattini v ICM 2000 Pty Ltd [2000] NSWCA 357

FILE NUMBER(S): CA 40053/00

HEARING DATE(S): 5 December 2000

JUDGMENT DATE:
5 December 2000

PARTIES :

Gualtiero Ceccattini, Emilion De Michelis and TPC Nominees Pty Ltd (Appellants)
ICM 2000 Pty Ltd and Wespac Industries Pty Ltd (Respondents)

JUDGMENT OF: Mason P at 63; Giles JA at 64; Heydon JA at 2

LOWER COURT JURISDICTION : Supreme Court - Equity Division

LOWER COURT
FILE NUMBER(S) : ED 2696/97

LOWER COURT
JUDICIAL OFFICER : Santow J

COUNSEL: B W Rayment QC/D L Warren (Appellants)
T E F Hughes QC/W Haffenden (Respondents)

SOLICITORS: Lapaine Pomare & Forster (Appellants)
Smits Leslie (Respondents)

LEGISLATION CITED: Administrative Decisions Judicial Review Act 1977 (Cth)

CASES CITED:
Commonwealth of Australia v Human Rights and Equal Opportunity Commission (1995) 133 ALR 629
Dovade Pty Ltd v Westpac Banking Group (1999) 46 NSWLR 168
Eagland v Favretto (NSWCA, unreported, 11 March 1996)
Gascar v Ellicott [1997] 1 VR 332
Northern NSW FM Pty Limited v Australian Broadcasting Tribunal (1990) 26 FCR 39
R v Australian Broadcasting Tribunal, ex parte Hardiman (1980) 144 CLR 13
Scott v Nurmurkah Corporation (1954) 91 CLR 300
Unstead v Unstead (1947) 47 SR (NSW) 495
Webb v R (1994) 181 CLR 41

DECISION: Appeal dismissed; the appellants are to pay the respondents' costs of the appeal

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40053/00
ED 2696/97

MASON P
GILES JA HEYDON JA

5 December 2000

CECCATTINI & Ors v ICM 2000 PTY LTD & Anor

JUDGMENT

1    MASON P: I ask Heydon JA to deliver the first judgment.
2    HEYDON JA:

Background
The first two appellants owned units in two unit trusts, the ICM 2000 Unit Trust and the Plumpton Unit Trust. The third appellant, which was not joined as a party to the proceedings until 15 April 1999, was trustee of two trusts for the families of the first two appellants.

3    A dispute broke out between two groups of unit holders in the two unit trusts. One group consisted of the appellants, the other consisted of the respondents. The dispute was settled on the basis that the appellants’ group would buy out the 35% of the units owned by the other group at a valuation as at 1 August 1995 on the assumption that certain assets agreed to be sold to the unit trusts before 1 August 1995 and transferred in October 1995 were part of the assets of the unit trusts. The assets were employed in a precast concrete business owned by two companies in receivership, namely, real estate comprising land known as “the Plumpton Property”, work in progress, plant and equipment, and the goodwill of the business. The agreements for sale were made in some haste between 18 April 1995 (when the receivers, Messrs A G Sherlock and M R Brown of Coopers & Lybrand, were appointed) and 3 July 1995. Though the receivers received some expressions of interest, they received only one offer, from…

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 Ceccattini v ICM 2000 Pty Ltd

Details

AGLC: Ceccattini v ICM 2000 Pty Ltd [2000] NSWCA 357
Case: [2000] NSWCA 357
Decision Date: 5 December 2000

CaseChat Overview and Summary

The appeal concerned a dispute between the appellants, Mr. and Mrs. Ceccattini, and the respondent, ICM 2000 Pty Ltd, regarding the sale of a property. The primary issue revolved around whether the respondent had breached its contractual obligations by failing to disclose certain information to the appellants prior to the sale. The matter was heard in the Court of Appeal of New South Wales.

The court was required to determine whether the respondent had breached its duty of disclosure under the *Home Building Act 1989* (NSW) and, if so, whether that breach entitled the appellants to terminate the contract. Further, the court considered whether the appellants had validly terminated the contract and, consequently, whether they were entitled to recover the deposit paid.

The Court of Appeal found that the respondent had not breached its disclosure obligations under the *Home Building Act 1989* (NSW) as the information in question did not fall within the scope of the Act's requirements. Consequently, the appellants were not entitled to terminate the contract on this basis. The court affirmed the principles of contractual interpretation and the requirements for valid termination, holding that the appellants had not established a lawful ground for rescission.

The appeal was dismissed, and the appellants were ordered to pay the respondents' costs of the appeal.

Orders

Orders of the court

Appeal dismissed; the appellants are to pay the respondents' costs of the appeal

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Ceccattini v ICM 2000 Pty Ltd [2000] NSWCA 357
FILE NUMBER(S):	CA 40053/00
HEARING DATE(S):	5 December 2000
JUDGMENT DATE:	5 December 2000
PARTIES :	Gualtiero Ceccattini, Emilion De Michelis and TPC Nominees Pty Ltd (Appellants) ICM 2000 Pty Ltd and Wespac Industries Pty Ltd (Respondents)
JUDGMENT OF:	Mason P at 63; Giles JA at 64; Heydon JA at 2

LOWER COURT JURISDICTION :	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S) :	ED 2696/97
LOWER COURT JUDICIAL OFFICER :	Santow J

COUNSEL:	B W Rayment QC/D L Warren (Appellants) T E F Hughes QC/W Haffenden (Respondents)
SOLICITORS:	Lapaine Pomare & Forster (Appellants) Smits Leslie (Respondents)
LEGISLATION CITED:	Administrative Decisions Judicial Review Act 1977 (Cth)
CASES CITED:	Commonwealth of Australia v Human Rights and Equal Opportunity Commission (1995) 133 ALR 629 Dovade Pty Ltd v Westpac Banking Group (1999) 46 NSWLR 168 Eagland v Favretto (NSWCA, unreported, 11 March 1996) Gascar v Ellicott [1997] 1 VR 332 Northern NSW FM Pty Limited v Australian Broadcasting Tribunal (1990) 26 FCR 39 R v Australian Broadcasting Tribunal, ex parte Hardiman (1980) 144 CLR 13 Scott v Nurmurkah Corporation (1954) 91 CLR 300 Unstead v Unstead (1947) 47 SR (NSW) 495 Webb v R (1994) 181 CLR 41
DECISION:	Appeal dismissed; the appellants are to pay the respondents' costs of the appeal