Giumelli v Giumelli

[2000] WASC 261

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   GIUMELLI -v- GIUMELLI & ANOR [2000] WASC 261

CORAM:   MASTER BREDMEYER

HEARD:   11 OCTOBER 2000

DELIVERED          :   27 OCTOBER 2000

FILE NO/S:   CIV 2023 of 1990

BETWEEN:   ROBERT JOHN GIUMELLI

Plaintiff

AND

GIOVANNI GIUMELLI
ROSA GIUMELLI
Defendants

Catchwords:

Parties - Application to join a defendant

Legislation:

Rules of the Supreme Court, O 18 r 6(2)

Result:

Application dismissed

Representation:

Counsel:

Plaintiff:     Mr R A C Cullen

Defendants:     Mr M A Hetherington

Proposed Second Defendant :     Mr G R Dean

Solicitors:

Plaintiff:     Dwyer Durack

Defendants:     G D Crocket & Co

Proposed Second Defendant :     Gary Dean & Associates

Case(s) referred to in judgment(s):

Giumelli v Giumelli (1996) 17 WAR 159

Giumelli v Giumelli [1999] HCA 10

Giumelli v Giumelli, unreported; SCt of WA (Nicholson J); Library No 930491; 10 September 1993

Giumelli v Giumelli, unreported; SCt of WA; Library No 940270; 26 May 1994

Case(s) also cited:

Nil

1. MASTER BREDMEYER:  This is an application by Steven Giumelli ("Steven") to be joined in this action as a defendant.  The application is opposed by the plaintiff but supported by the defendants.  The application is made under O 18 r 6(2) which reads:

   "At any stage of the proceedings in any cause or matter the court may on such terms as it thinks just and either of its own motion or on application -

   (a)...

   (b)order that any person who ought to have been joined as a party or whose presence before the court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, be added as a party,

   but no person shall be added as a plaintiff without his consent signified in writing or in such other manners as may be authorised."

2. Steven is a younger brother of Robert John Giumelli ("Robert"), the plaintiff, and both are sons of Mr and Mrs Giovanni Giumelli, the defendants.  The defendants are the owners of an orchard property at Dwellingup.  The present action is partly completed.  There has been a trial before Nicholson J which resulted in a judgment: Giumelli v Giumelli, unreported; SCt of WA; Library No 930491; 10 September 1993 and supplementary judgment:  Giumelli v Giumelli, unreported; SCt of WA; Library No 940270; 26 May 1994.  There was an appeal from that judgment to the Full Court:  Giumelli v Giumelli (1996) 17 WAR 159 and there has been an appeal from that decision to the High Court of Australia: Giumelli v Giumelli [1999] HCA 10. As a result of those hearings and especially the High Court decision, the defendants, who are the owners of an orchard property at Dwellingup, are to pay compensation to Robert for having failed to honour a promise to him to deliver to him part of the land on which is situated a house built for Robert and a small orchard. This land is known in the judgments as "the promised lot". Nicholson J had found for Robert only in relation to the house and the plot on which it stood and he ordered the defendants to pay compensation for that house and land which he fixed at $66,071, which he said was its value as at September 1993. The Full Court overturned that decision and held that Robert was to be compensated for the house and the small orchard near it which together made up the promised lot and that the land was to be subdivided and that promised lot conveyed to him. The High Court overturned that finding and ordered that the defendants were to compensate the relevant part of the orders made by the High Court as follows:

   "[Robert] is entitled to payment by [Mr and Mrs Giumelli] of a sum representing the present value of the Promised Lot to be determined by a Judge of the Supreme Court of Western Australia in accordance with the reasons of this Court, taking into account all considerations for which allowance should be made in calculating the sum so as to do equity between the parties to the action and all relevant third parties, and upon such further evidence as that Court may allow;"

3. I quote from parts of the High Court judgment:

   "22Steven married in 1985 and has lived with his wife and children at the Dwellingup property.  They have occupied what was identified as a transportable house which was brought to the Promised Lot in 1976 and thereafter extended and occupied by Robert until 1981.  Steven and his family have not occupied the house referred to in the second and third promises and also situated on the Promised Lot.  Steven has made various improvements to the Promised Lot, including the building of coolrooms and the planting of 1000 new trees.

   ...

   49However, the appellants correctly challenge the Full Court order on other grounds.  Before making an order designed to bring about a conveyance of the Promised Lot to the respondent, the Full Court was obliged to consider all the circumstances of this case.  These circumstances included the still pending partnership action, the improvements to the Promised Lot by family members other than Robert, both before and after his residency there, the breakdown in family relationships and the continued residence on the Promised Lot of Steven and his family.  It will be recalled that Steven is a party to the partnership action but not to the present action.

   50When these matters are taken into account, it is apparent that the order made by the Full Court reflected what in Verwayen was described as the prima facie entitlement of Robert.  However, qualification was necessary both to avoid injustice to others, particularly Steven and his family, and to avoid relief which went beyond what was required for conscientious conduct by Mr and Mrs Giumelli.  The result points inexorably to relief expressed not in terms of acquisition of title to land but in a money sum.  This would reflect, with respect to the third promise, the approach taken by R D Nicholson J when giving relief in respect of the second promise.

   ...

   53We should note that the judgment of Master Bredmeyer took matters of partnership accounting only up to June 1986 and, in any event, did not deal fully with all matters in dispute.

   54On one view, as to which we express no decision, for what is now some 12 years, the respondent has been deprived of a share of profits earned by the partnership from the Promised Lot and of rent from the house.  Further, in fixing the sum to represent an appropriate monetary order there may be a case for an allowance in his favour representing a share of anticipated profits from the partnership in relation to the Promised Lot for a specified period of future years, perhaps contingent upon the joint lives of Mr and Mrs Giumelli.

   55On the other hand, an allowance would have to be made for the improvement to the value of the land since 1986 brought about, in particular, by Steven's work.  In addition to the planting of fruit trees and the construction of sheds and coolrooms, the appellants contend there has been significant expenditure on water supply and storage systems."

4. In my above account of the narrative setting the scene for the present application I have referred to the defendants as Mr and Mrs Giovanni Giumelli.  However, since the High Court judgment Mr Giovanni Giumelli has died and his widow Rosa is the inheritor of the Dwellingup land by survivorship.  She is the one who will be ordered to pay the compensation owing to Robert.

5. It was said on behalf of Steven that he is a necessary party to this action, as he would like to lead evidence of improvements he placed on the promised lot, both before and after Robert's work on the promised lot, in order to reduce the equitable compensation which might otherwise be payable to Robert.  Steven is not content to be a witness for his mother, giving evidence on those matters.  He would like to be a party and to be represented by his own counsel and to plead a defence - although no orders are sought against him - and to be entitled to discovery and to administer interrogatories if thought desirable.  His counsel said that Steven would not be entitled to see discovery given by Robert to his mother Rosa, because if she showed those documents to him she would be breaching her implied undertaking not to use documents discovered by Robert for any collateral or improper purpose:  Seaman, 26.9.6.  I do not agree with that argument.  If Rosa were to show those documents to Steven, her witness, in order to lead evidence from him to refute evidence to be led by Robert that would not be misusing discovered documents for any collateral or improper purpose.  I can see no good reason why Steven needs to be joined in this action.  His presence is not necessary in my view to effectually and completely determine the issues to be decided.  His representation by separate counsel would only cause to prolong the hearing and increase the costs.  The application for joinder will be dismissed.