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Ciaglia v Ciaglia

Ciaglia v Ciaglia

Case [2010] NSWSC 723 2 July 2010

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CITATION: Ciaglia v Ciaglia [2010] NSWSC 723

HEARING DATE(S): Written submissions received 13/5/10 and 18/5/10

JUDGMENT DATE :
2 July 2010

JURISDICTION: Equity

JUDGMENT OF: White J

DECISION: 1. Declare that the late Pamela Josephine Ciaglia held the property comprised in Folio Identifier 3/15212 and known as [xxx] Goodchap Road, Chatswood NSW (the “Chatswood property”) on trust for the plaintiff as to a one half share.
2. Order that Joseph Ciaglia be appointed as representative of the estate of Pamela Josephine Ciaglia for the purposes of these proceedings.
3. Within 28 days of probate being granted in respect to the estate of the defendant, order that Joseph Ciaglia deliver to the plaintiff or his solicitor a signed transfer in respect to one half interest in the Chatswood property.
4. Order that Joseph Ciaglia take all necessary steps to obtain the consent of any mortgagee to the transfer and its registration.
5. Order that the plaintiff pay the reasonable legal costs of Joseph Ciaglia in relation to the transfer of the half interest in the property to the plaintiff and pay any duty, registration fees or other expenses payable for the registration of the transfer.
6. Grant liberty to the parties to apply on reasonable notice for any consequential orders relating to the execution of these orders.
7. Order that all other claims for relief in the summons and amended statement of claim be dismissed.
8. Order that there be no order as to costs of the proceedings with the intention that each party bear his and her own costs.
9. The exhibits may be returned after 28 days.
10. Order that within seven days the plaintiff’s solicitors provide a copy of these orders to the solicitors for the plaintiff’s former wife and, unless they have already done so, within the same time provide a copy of my reasons for judgment (Ciaglia v Ciaglia [2010] NSWSC 341) to the solicitors for the plaintiff’s former wife.

CATCHWORDS: PRACTICE AND PROCEDURE – appointment of representative of defendant’s estate under UCPR 7.10 – form of final orders for relief - COSTS – whether general rule that costs follow event should be displaced – where case on which plaintiff succeeded not pleaded until late amendments to pleadings allowed – where defendant made offer of compromise in previous proceedings and rejected by plaintiff – where additional claims for relief in previous proceedings not brought in present proceedings – no order as to costs

LEGISLATION CITED: Probate and Administration Act 1898 (NSW)
Conveyancing Act 1919 (NSW)
Civil Procedure Act 2005 (NSW)
Corporations Act 2001 (Cth)
Income Tax Assessment Act 1997 (Cth)

CATEGORY: Consequential orders

CASES CITED: Beoco Ltd v Alfa Laval Co Ltd [1995] QB 137; [1994] 4 All ER 464
Ciaglia v Ciaglia [2010] NSWSC 341

PARTIES: Plaintiff: Robert Andrew Ciaglia
Defendant: Pamela Josephine Ciaglia

FILE NUMBER(S): SC 2008/282990

COUNSEL: Plaintiff: T J Morahan
Defendant: S Klotz (sol'r)

SOLICITORS: Plaintiff: Bryden's Law Office
Defendant: Norton Rose

IN THE SUPREME COURT
OF NEW SOUTH…

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 Ciaglia v Ciaglia

Details

AGLC: Ciaglia v Ciaglia [2010] NSWSC 723
Case: [2010] NSWSC 723
Decision Date: 2 July 2010

CaseChat Overview and Summary

The case of Ciaglia v Ciaglia involved a dispute between the parties over the appointment of a representative of the defendant's estate under the UCPR 7.10 and the form of final orders for relief. Additionally, the court addressed whether the general rule that costs follow the event should be displaced in this case. The matter was heard in the Federal Circuit Court of Australia.

The primary legal issues before the court were whether the plaintiff's late amendments to the pleadings were justifiable, and if so, whether this warranted a departure from the usual rule that costs follow the event. The court also needed to consider whether the defendant's offer of compromise made in previous proceedings, which was rejected by the plaintiff, and the additional claims for relief not brought in the present proceedings, should influence the costs order.

The court found that the plaintiff's amendments to the pleadings, which were made late, did not prejudice the defendant, and thus were allowed. However, the court held that the general rule that costs follow the event should not be displaced. The court reasoned that the plaintiff had not pleaded the case on which they succeeded until the late amendments, and the defendant had made an offer of compromise in previous proceedings which was rejected by the plaintiff. Moreover, the additional claims for relief in the previous proceedings were not brought in the present proceedings. As such, the court did not make any order as to costs.

In conclusion, the court allowed the late amendments to the pleadings but did not displace the general rule that costs follow the event. The court did not make any order as to costs due to the circumstances of the case, including the late pleadings, the rejected offer of compromise, and the additional claims for relief not brought in the present proceedings.

Orders