Curcuruto v Curcuruto Summary

[2015] QCA 229

COURT OF APPEAL

FRASER JA
MORRISON JA
BODDICE J

Appeal No 3422 of 2015
SC No 10864 of 2014

CARMELO DOMENICO CURCURUTO Appellant

CATERINA CURCURUTO

PUBLIC TRUSTEE OF QUEENSLAND Respondents

BRISBANE

MONDAY, 16 NOVEMBER 2015

JUDGMENT

FRASER JA: This is an appeal against an order made in the trial division appointing statutory trustees for sale in respect of four separate lots of real property owned jointly by the appellant and his mother, who is now represented by the Public Trustee. When the matter was called, the appellant did not appear.

As is well-known, there are very few grounds upon which such an application as was made in the trial division can be opposed. The judge in the trial division gave persuasive reasons for holding that there was no exceptional basis here for refusing the order and made the order. The appellant’s outline did not contain any challenge to the reasoning of the primary judge. There is no basis whatever for thinking that there is any reasonable ground for contending that the order made below was incorrect.

The notice of appeal was filed out of time so the appellant requires an extension of time. In the circumstances, it is appropriate simply to refuse the implied application for an extension of time. The orders I would make are:

1.Refuse the application for an extension of time.
2.Secondly, given that no person, properly advised, could have thought there was any basis for bringing the application or the appeal, order that the applicant pay the respondent’s costs of the application, including the proposed appeal, on an indemnity basis.

BODDICE J:I agree.
MORRISON JA: I agree.
FRASER JA: Those are the orders of the court.

CaseChat Overview and Summary

The case of Curcuruto v Curcuruto involves Carmelo Domenico Curcuruto appealing an order made by the trial division. The order in question appointed statutory trustees for sale in respect of four separate lots of real property that were jointly owned by Curcuruto and his mother, who is represented by the Public Trustee. The appellant did not appear when the matter was called, leading to the primary judge making the order. The appeal was filed out of time, requiring an extension, and the appellant did not challenge the primary judge's reasoning in his outline.

The court needed to determine whether there was a basis for opposing the trial division's order and whether there were reasonable grounds for contending that the order was incorrect. Given that the appellant did not appear and did not challenge the reasoning of the primary judge, the court found no basis for the appeal. The court further held that the appeal was filed out of time, and there was no reasonable ground for an extension of time. Additionally, the court considered the costs associated with the appeal, finding that the appeal was without merit and ordering the appellant to pay the respondent's costs on an indemnity basis.

The court dismissed the appeal and refused the application for an extension of time. The court also ordered the appellant to pay the respondents' costs of the application, including the proposed appeal, on an indemnity basis. The judges, Fraser JA, Boddice J, and Morrison JA, all agreed on the outcome and the orders made.

Curcuruto v Curcuruto

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established