Grizonic v Suttor - [2008] NSWSC 900

CITATION: Grizonic v Suttor [2008] NSWSC 900

HEARING DATE(S): 22 February 08

JURISDICTION: Equity Division
Expedition List

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 22 February 2008

DECISION: Common law proceeding 20002/05 transferred from Common Law Division to Equity Division to be heard together with proceedings 6141/03. Application to dismiss proceeding 6141/03 for want of application refused.

CATCHWORDS: PROCEDURE – application by plaintiff to merge common law proceeding into equity proceeding – where facts and issues raised by common law proceeding closely interwoven with equity proceeding. - PROCEDURE – DISMISSAL FOR WANT OF PROSECUTION – where proceeding has long procedural history – where both parties have failed to comply with Court directions.

LEGISLATION CITED: (NSW) Uniform Civil Procedure Rules, r 46.5

CATEGORY: Procedural and other rulings

PARTIES: 6141/03 Claudio Grizonic (plaintiff)
Suzanne Ranken Suttor (first defendant)
Find a Flat Pty Ltd (second defendant)
2475/05 Claudio Grizonic (plaintiff)
Geoffrey McDonald (first defendant)
Paul Leroy (second defendant)
Suzanne Suttor (third defendant)
1960/08 Claudio Grizonic (plaintiff)
Suzanne Ranken Suttor (first defendant)
Rodney Ranken Suttor (second defendant)
Find a Flat Pty Ltd (third defendant)

FILE NUMBER(S): SC 6141/03; 2475/05; 1960/08

COUNSEL: Mr C Grizonic (in person) w Ms D Wade (plaintiff)
Mr A Jungwirth (D1,2 in 6141/03), (D3 in 2475/05), (D1, 2, 3 in 1960/08)
Mrs Baxter (D1, 2 in 2475/05)

SOLICITORS: Mr Mark Gallego (D1,2 in 6141/03), (D3 in 2475/05), (D1, 2, 3 in 1960/08)
Yates Beaggi Lawyers (D1, 2 in 2475/05)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EXPEDITION LIST

BRERETON J

Friday 22 February 2008

6141/03 Claudio Grizonic v Suzanne Ranken Suttor & 1 Or
2475/05 Claudio Grizonic v Geoffrey McDonald & 2 Ors
20002/05 Claudio Grizonic v Suzanne Ranken Suttor & 1 Or

JUDGMENT (ex tempore)

Application for transfer

1 HIS HONOUR: In accordance with the usual practice of the Court, I have obtained the consent of the Chief Judge in Common Law to my sitting at common law for the purpose of entertaining Mr Grizonic’s application for the transfer of these proceedings to the Equity Division.

2 The common law proceedings (20002/05) are a claim by Mr Grizonic against Ms Suzanne Ranken Suttor and Find-a-Flat Pty Limited, a company in which Ms Suttor and her brother are the shareholders, which is pleaded as a claim for damages said to arise from breaches of duty, by Ms Suttor in particular, in connection with the former partnership between Mr Grizonic and Ms Suttor which traded as a restaurant called Da Valentinos. Essentially, Mr Grizonic alleges that she used partnership funds and dealt with partnership property in a manner which ultimately conferred benefits on herself, her brother and/or the third defendant, a company controlled by them, which benefits belonged in equity to the partnership.

3 Although pleaded as a claim for damages suffered by Mr Grizonic, it is clear enough that the real burden of the allegations in those proceedings is a breach of duty owed to the partnership, and the proper remedy would be that the defendants,…

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 Grizonic v Suttor

Details

AGLC: Grizonic v Suttor [2008] NSWSC 900
Case: [2008] NSWSC 900
Decision Date: 22 February 2008

CaseChat Overview and Summary

The matter of Grizonic v Suttor came before the court where the plaintiff sought to merge a common law proceeding into an equity proceeding. The plaintiff and the defendant were embroiled in a protracted legal dispute that involved both common law and equitable issues. The court was tasked with deciding whether the plaintiff's application to merge the two proceedings was appropriate, given the close interweaving of the facts and issues between the common law and equity proceedings.

The court considered the procedural history of the case, noting that it had been marked by delays and non-compliance with court directions by both parties. The court had previously issued directions to the parties to expedite the proceedings, which had not been followed. The court had to balance the desirability of resolving the dispute through a single proceeding against the need to maintain procedural fairness and the efficient use of court resources.

After careful consideration, the court determined that the plaintiff's application to merge the proceedings should be granted. The court recognised that the issues in both proceedings were closely related and that a single proceeding would be more efficient and less costly for the parties. However, the court also emphasised the importance of compliance with court directions in future proceedings. The court dismissed the proceeding for want of prosecution due to the prolonged procedural history and the failure of both parties to adhere to court directions. The court ordered that the common law and equity proceedings be merged into a single proceeding, with specific directions for the parties to comply with any further procedural requirements.

Orders