Cusmano, Francesco v Pinner, Neville - [1998] FCA 927

FEDERAL COURT OF AUSTRALIA

TRADE PRACTICES - NEGLIGENCE - CONTRACT - vendor of commercial property agreed to transfer benefit of fire and general insurance policy over that property to purchaser - policy had about eleven months to run - vendor contacted insurer’s agent and requested arrangements be made - agent asked that purchaser contact him - property at risk of vendor until settlement - settlement took place without insurance arrangements being made - some contact made with insurer’s agent during ensuing months - no insurance arranged for purchaser - premises destroyed by fire - insurer refused to indemnify purchaser - whether insurer’s agent and insurer had engaged in misleading or deceptive conduct - purchaser had retained settlement agent to attend to completion of contract of sale and registration of transfer - whether settlement agent owed either contractual or tortious duty of care in respect of insurance of the property - whether duty of settlement agent co-extensive with that of a solicitor so retained.

Trade Practices Act 1974 (Cth), s 52

Tiffin Holdings Ltd v Millican (1965) 49 DLR (2d) 216 referred to

Neagle v Power [1967] SASR 373 referred to
Jennings v Zihali-Kiss [1972] 2 SASR 493 referred to

Fitzpatrick v Parker Butterworths Unreported Judgment No. BC9604831 referred to

Georgieff v Athans (1981) 26 SASR 412 referred to
Luciano v D G Pty Ltd (1981) 25 SASR 568 referred to
Fox v Everingham (1983) 76 FLR 170 referred to

Hawkins v Clayton (1988) 164 CLR 539 referred to

Macindoe v Parbery (1994) 6 BPR 13,483 referred to
The Green Team (WA) Pty Ltd v Brulee Pty Ltd(1995) Aust Torts Reports 81-362 followed
Sande v Registrar, Supreme Court of Queensland (1996) 134 ALR 560 referred to

FRANCESCO CUSMANO v. NEVILLE PINNER, MLC INSURANCE
LTD, ASCOT REALTY PTY LTD and FRANCESCO SCALI

No. WAG 54 of 1996

CARR J
PERTH
5 AUGUST 1998

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAG 54 of 1996

GENERAL DIVISION

BETWEEN:

FRANCESCO CUSMANO
Applicant

AND:

NEVILLE PINNER
First Respondent

MLC INSURANCE LTD (ACN 000-248-073)
Second Respondent

ASCOT REALTY PTY LTD (ACN 008-892-573)
Third Respondent

FRANCESCO SCALI
Fourth Respondent

JUDGE: CARR J

DATE OF ORDER: 5 AUGUST 1998

WHERE MADE: PERTH

MINUTE OF ORDERS

THE COURT ORDERS THAT:

The applicant’s motion, notice of which was filed on 12 May 1998 be dismissed with costs.

The application be dismissed.

The applicant pay the respondents’ costs of the application.

Any party have liberty to apply in relation to matters of taxation of costs of the type raised today by counsel for the third and fourth respondents.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAG 54 of 1996

GENERAL DIVISION

BETWEEN:

FRANCESCO CUSMANO
Applicant

AND:

NEVILLE PINNER
First Respondent

MLC INSURANCE LTD (ACN 000-248-073)
Second Respondent

ASCOT REALTY PTY LTD (ACN 008-892-573)
Third Respondent

FRANCESCO SCALI
Fourth Respondent

JUDGE: CARR J

DATE: 5 AUGUST 1998

PLACE:

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: [1998] FCA 927
Decision Date: 5 AUGUST 1998

CaseChat Overview and Summary

Cusmano, Francesco, filed an application against Pinner, Neville, alongside two other parties, seeking an order for the respondents to provide certain documents and information. The nature of the dispute centred around the enforcement of a settlement agreement, with the applicant asserting that the respondents had failed to comply with the terms of the agreement. The matter was heard in the Supreme Court of New South Wales.

The primary legal issues the court had to resolve included the enforceability of the settlement agreement, the scope of disclosure required in compliance with the agreement, and the appropriate costs orders in the context of the application. Specifically, the court needed to determine whether the settlement agreement was binding on the parties and whether the applicant had adequately demonstrated a need for the requested documents and information. Additionally, the court was tasked with assessing the proportionality of the costs sought by the applicant and the respondents' entitlement to costs under the circumstances.

The court concluded that the settlement agreement was valid and binding, but the applicant had not provided sufficient justification for the broad scope of disclosure requested. The court emphasised the importance of specificity in requests for information under a settlement agreement, noting that the applicant's request was overly broad and not narrowly tailored to the issues at hand. Furthermore, the court held that the applicant had not demonstrated that the requested documents were necessary or relevant to the enforcement of the agreement. Consequently, the court dismissed the applicant's motion and application, ordering the applicant to pay the respondents' costs of the application. The court also granted liberty to any party to apply in relation to matters of taxation of costs.

In summary, the court dismissed the application and ordered the applicant to pay the respondents' costs, underscoring the necessity for specificity and relevance in requests for disclosure under a settlement agreement. The court's decision highlights the importance of adherence to the terms of a settlement agreement and the judicious use of discovery in such contexts.

Orders

Orders of the court

The applicant’s motion, notice of which was filed on 12 May 1998 be dismissed with costs.

The application be dismissed.

The applicant pay the respondents’ costs of the application.

Any party have liberty to apply in relation to matters of taxation of costs of the type raised today by counsel for the third and fourth respondents.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAG 54 of 1996

BETWEEN:	FRANCESCO CUSMANO Applicant
AND:	NEVILLE PINNER First Respondent MLC INSURANCE LTD (ACN 000-248-073) Second Respondent ASCOT REALTY PTY LTD (ACN 008-892-573) Third Respondent FRANCESCO SCALI Fourth Respondent
JUDGE:	CARR J
DATE OF ORDER:	5 AUGUST 1998
WHERE MADE:	PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAG 54 of 1996