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Iacullo v Iacullo

Iacullo v Iacullo

Case [2013] NSWSC 1517 18 October 2013

Referral to Referee

Amendment of Pleadings

Stay of Proceedings

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Dominic Iacullo and Lillian Iacullo v Luigi Iacullo & Ors [2013] NSWSC 1517
Hearing dates: 4-6 September 2013; further written submissions 17 and 23 September 2013
Decision date: 18 October 2013
Jurisdiction: Equity Division
Before: Black J
Decision:
Judgment that referee's report should be adopted in full by the Court and specified paragraphs should be struck out of amended cross-claim. Leave declined to file further amended cross-claim in present form. Parties to be heard as to directions which should be made so the matter can be set down for hearing.

Catchwords: PROCEDURE - referral to referee - where matters in respect of transactions, assets and liabilities of five trusts were referred to a referee pursuant to r 20.14 Uniform Civil Procedure Rules 2005 (NSW) - whether referee's report giving an account of transactions, assets and liabilities of relevant trusts should be adopted.
PROCEDURE - application for leave to file further amended cross-claim - strike-out application in respect of amended cross-claim - whether pleadings state with sufficient clarity the case that must be met - whether pleadings have a tendency to cause embarrassment in the proceedings.
PROCEDURE - judgments and orders - application to stay other proceedings.
Legislation Cited: - Civil Procedure Act 2004 (NSW) ss 56, 56(1), 58(1), 58(2)
- Corporations Act 2001 (Cth) s 237
- Limitation Act 1969 (NSW) s 47(1)
- Trade Practices Act 1974 (Cth) ss 52, 75B
- Uniform Civil Procedure Rules 2005 (NSW) r 14, 14.28, 20.13, 20.14, 20.24
Cases Cited: - Alexander v Perpetual Trustees WA Ltd [2004] HCA 7; (2004) 216 CLR 109
- Banque Commerciale SA v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279
- Bellevarde Constructions Pty Ltd v CPC Energy Pty Ltd [2008] NSWCA 228
- BestCare Foods v Origin Energy [2012] NSWSC 574
- Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWSC 1302
- Chocolate Factory Apartments Ltd v West Point Finance Pty Ltd [2005] NSWSC 784
- Commonwealth v Davis Samuel Pty Ltd (No 7) [2013] ACTSC 146
- Corbett Court Pty Ltd v Quasar Constructions (NSW) Pty Ltd [2008] NSWSC 1163
- Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658
- Downer Connect Pty Ltd v McConnell Dowell Constructors (Aust) Pty Ltd [2008] VSC 77
- Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89
- Fitzwood Pty Ltd v Unique Goal Pty Ltd (in liq) [2001] FCA 1628; (2001) 188 ALR 566
- Fortescue Metals Group Ltd v Australian Securities & Investments Commission [2012] HCA 39; (2012) 291 ALR 399; (2012) 91 ACSR 128
- Gunns Ltd v Marr [2005] VSC 251
- Iacullo v Iacullo (No 3) [2012] NSWSC 274
- Illawarra Hotel Company Pty Ltd v Walton Construction Pty Ltd [2013] NSWCA 6
- Kirby v Sanderson Motors Pty Ltd [2002] NSWCA 44; (2001) 54 NSWLR 135
- Leawell Pty Ltd as trustee for…

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 Iacullo v Iacullo

Details

AGLC: Iacullo v Iacullo [2013] NSWSC 1517
Case: [2013] NSWSC 1517
Decision Date: 18 October 2013

CaseChat Overview and Summary

In the matter of Iacullo v Iacullo, the court was tasked with considering the transactions, assets, and liabilities of five trusts, which had been referred to a referee under rule 20.14 of the Uniform Civil Procedure Rules 2005 (NSW). The primary issue before the court was whether the referee's report, detailing the account of these trusts, should be adopted. This decision hinged on the accuracy and comprehensiveness of the referee's findings, as well as the procedural fairness of the process.

The legal issues before the court involved the admissibility and sufficiency of the referee's report in light of the parties' submissions and objections. Additionally, the court had to address the plaintiffs' application for leave to file a further amended cross-claim, alongside a strike-out application regarding the amended cross-claim. The court needed to determine whether the pleadings sufficiently stated the case that had to be met and whether they had a tendency to cause embarrassment in the proceedings. The court's reasoning was meticulous, focusing on the clarity and precision of the pleadings and their alignment with procedural rules.

The court concluded that the referee's report should be adopted, finding it to be comprehensive and fair. Regarding the application for leave to file a further amended cross-claim and the strike-out application, the court determined that the pleadings did not sufficiently state the case and had the potential to cause unnecessary complications in the proceedings. Consequently, the court dismissed the application for leave to file a further amended cross-claim and allowed the strike-out application. This decision was grounded in the necessity to maintain procedural fairness and clarity in the litigation process.

As a result of the court's determination, the referee's report was adopted, and the plaintiffs' application to file a further amended cross-claim was dismissed. The court's orders ensured that the proceedings would proceed with clarity and without unnecessary procedural impediments.

Orders