Micallef v Ofria - [2000] NSWSC 750

CITATION: Micallef v Ofria [2000] NSWSC 750

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 4597 of 1997

HEARING DATE(S): 2 March, 7 April, 29 June 2000

JUDGMENT DATE: 2 August 2000

PARTIES :

Gerald Micallef (First Plaintiff)
Normal Micallef (Second Plaintiff)
Roland Ofria (First Defendant)
Marlene Ofria (Second Defendant)

JUDGMENT OF: Windeyer J at 1

LOWER COURT
JURISDICTION : Supreme Court (Master)

LOWER COURT
FILE NUMBER(S) :

LOWER COURT
JUDICIAL OFFICER : Acting Master Berecry

COUNSEL : Mr L. de Vere Tyndall (Plaintiffs)
Mr R.W. Cameron (Defendants)

SOLICITORS: John Burrell Solicitors (Plaintiffs)
Tony Vella (Defendants)

CATCHWORDS: APPEAL from decision of Master - enquiry by Master into accounts on order for sale of property - whether rents received by plaintiffs - whether allowance should be made for improvements carried out by the defendants - no evidence of cost of improvements or of increase in value of the property - appeal allowed in part

CASES CITED: Avard v EH Harrison & Son Pty Ltd (unreported McLelland CJ in Eq 13 August 1989)
Pollicino v Pollicino (unreported, Windeyer J 14 August 1997)

DECISION: See paragraph 20

1
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
WINDEYER J
WEDNESDAY 2 AUGUST 2000
4597/97 Gerald Micallef & Normal Micallef v Roland Ofria & Marline Ofria
JUDGMENT
Outline
1    This is an appeal from a judgment of Acting Master Berecry which resulted in a certificate under which he found that the defendants owed the plaintiffs $24,481.99. The certificate is dated 22 October 1999.
2    The proceedings between the plaintiffs, Mr and Mrs Micallef and the defendants, Mr and Mrs Ofria, related to premises 431 Gardiners Rd Mascot. Mr and Mrs Micallef owned a one half interest in those premises as tenants in common with Mr and Mrs Ofria as to the other half interest. It was an investment property.
3    On 4 December 1997 an order was made by consent for sale of the property and for an account to be taken of the income, expenditure and transactions concerning the property. There was no order for a Master to conduct an enquiry on the account but it was obviously assumed that it would happen and in fact it did. It was that account which was the subject of the certificate in question. One of the orders which was made was that the defendants pay to the plaintiffs the amount if any found due to them on the taking of the account together with interest thereon. As far as I can ascertain from the file, judgment has not been entered and it is not clear how this was to be done without some further consideration. The learned Acting Master did not consider the question of interest and he was not directed to enter judgment on his certificate. I have expressed the view before that in matters such as this it is more appropriate to bring the matters back before a judge on motion for further consideration and variation of the Master's certificate rather than by appeal.…

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 Micallef v Ofria

Details

AGLC: Micallef v Ofria [2000] NSWSC 750
Case: [2000] NSWSC 750
Decision Date: 2 August 2000

CaseChat Overview and Summary

In the matter of Micallef v Ofria, the plaintiffs, Micallef, sought an appeal against the decision of a Master of the Supreme Court of Victoria. The plaintiffs were contesting the outcome of an enquiry ordered by the Master into the accounts related to the sale of a property. The plaintiffs sought to establish whether they were entitled to rents received by the defendants, Ofria, during the period of the enquiry. Additionally, they argued that an allowance should be made for improvements carried out by the defendants, which they claimed had increased the property's value.

The legal issues that arose in this case centred on the interpretation and application of the relevant sections of the Supreme Court Act 1986 (Vic). Specifically, the court had to determine the appropriate treatment of rents received by the defendants and whether an allowance should be made for improvements carried out by them, given the lack of evidence regarding the cost of these improvements and any resultant increase in the property's value. The plaintiffs argued that the Master had erred in not allowing for the rents and improvements, while the defendants contended that the Master's decision should be upheld.

The court found that the Master had erred in not considering the issue of rents received by the defendants. The court held that the plaintiffs were indeed entitled to these rents, as they were income derived from the property during the period in question. However, regarding the improvements, the court found that there was insufficient evidence to establish the cost of the improvements or the extent to which they had increased the property's value. Consequently, the court determined that the Master's decision not to make an allowance for the improvements was correct. The appeal was allowed in part, and the matter was remitted to the Master for further consideration of the rents.

The final orders of the court were that the plaintiffs were to be awarded the rents received by the defendants, and the matter was to be remitted to the Master for reassessment of the accounts in light of this determination. No orders were made concerning the allowance for improvements, as the court found that there was insufficient evidence to support such an allowance.

Orders