David Williamson v Vince Scarano - [2011] NSWSC 1318

Supreme Court

New South Wales

Medium Neutral Citation: David Williamson v Vince Scarano [2011] NSWSC 1318
Hearing dates: 27 October 2011
Decision date: 04 November 2011
Jurisdiction: Equity Division
Before: Bryson AJ
Decision:
Leave to amend on terms: proceedings dismissed if not complied with. See [24]

Catchwords: PRACTICE AND PROCEDURE - Summary Disposal - Amended Statement of Claim claimed only charge on house owned by defendant - defendant no longer owned house, applied for Summary Disposal as remedy claimed could not be awarded - plaintiff applied for amendment to revive Constructive Trust claim earlier abandoned - leave to amend granted to claim charge over proceeds of sale, refuse to revive Constructive Trust claim - on terms that plaintiff pay $20,000 on account of costs, proceedings to be dismissed if terms not complied with
Legislation Cited: Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Williamson v Scarano [2010] NSWSC 975
Category: Interlocutory applications
Parties: Plaintiff: David Williamson
Defendant: Vince Scarano
Representation: Plaintiff: GE McVay
Defendant: DE Baran
Plaintiff: Mills Oakley Lawyers
Defendant: Jacovou & Co

File Number(s): 2010/257420

Judgment

These reasons dispose of two Notices of Motion, the defendant's Notice of Motion filed on 1 July 2011 seeking Summary Disposal under Uniform Civil Procedure Rules 2005 (NSW) r 13.4 and the plaintiff's Notice of Motion of 13 October 2011 seeking leave to file Further Amended Statement of Claim. The proceedings relate to interests in a house at Ermington which has been sold since the Amended Statement of Claim was filed, and the sale was completed on 20 January 2011. At the relevant times until then the defendant was its sole registered proprietor.

The plaintiff and the defendant's daughter Angela lived together for some years as domestic companions and later as a married couple, and they have two children, the elder being their son who was born in 2001. The plaintiff and Angela lived at several different places before they occupied the Ermington house in December 2001. From time to time the defendant employed the plaintiff to do maintenance work on commercial properties, and later to do cleaning work. The plaintiff and Angela continued to live in the house at Ermington until Angela left in December 2008. They have lived separately since then, and have made arrangements for the care of their children to be shared.

The plaintiff alleges that in August 2001, after the defendant acquired the house at Ermington, the parties had a conversation in the course of which the defendant said to the effect that he wanted the plaintiff and Angela to live in the house and to contribute to paying the mortgage; that the plaintiff could pay Angela $150 a week which she would put towards paying the mortgage on the property and the defendant would contribute money for her to put towards the mortgage; and the defendant also said that he would give the plaintiff a 50% interest in the property. Pleadings show that it is contested whether there was such a…

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: [2011] NSWSC 1318
Decision Date: 04 November 2011

CaseChat Overview and Summary

David Williamson, the plaintiff, brought an action against Vince Scarano, the defendant, seeking a charge on a house owned by the defendant, as well as other claims. The defendant no longer owned the house, leading to the plaintiff's application for summary disposal of the action as the remedy sought could not be granted. The defendant opposed the plaintiff's application on the basis that the plaintiff also sought to revive a Constructive Trust claim which had been abandoned. The court considered whether the plaintiff's application for leave to amend the Statement of Claim should be granted, as well as the defendant's opposition to the plaintiff's application for summary disposal.

The court considered the appropriate exercise of its discretion under the relevant rules to allow the plaintiff to amend the Statement of Claim. The court noted the plaintiff's concession that the Constructive Trust claim could not be revived and was not being pursued. The court also considered the defendant's opposition to the plaintiff's application for summary disposal of the proceedings. The court held that the plaintiff should be granted leave to amend the Statement of Claim, but the Constructive Trust claim could not be revived. The court further held that the plaintiff's application for summary disposal should be granted on the condition that the plaintiff pay $20,000 on account of costs and the proceedings would be dismissed if those terms were not complied with.

The court's decision was based on the appropriate exercise of its discretion under the relevant rules. The court held that the plaintiff should be granted leave to amend the Statement of Claim to claim a charge over the proceeds of sale of the house, but the Constructive Trust claim could not be revived. The court further held that the plaintiff's application for summary disposal should be granted, on the condition that the plaintiff pay $20,000 on account of costs and the proceedings would be dismissed if those terms were not complied with. This decision provides guidance on the appropriate exercise of the court's discretion in relation to amending a Statement of Claim and summary disposal applications.

Orders