Nigro v Parisi - [2004] NSWSC 1177

CITATION: Nigro v Parisi [2004] NSWSC 1177

HEARING DATE(S): 14/09/04, 15/09/04, 16/09/04, 17/09/04,
21/09/04
Written submissions: 21/09/04, 27/09/04, 29/09/04

JUDGMENT DATE:
10 December 2004

JURISDICTION:
Equity Division

JUDGMENT OF: Barrett J

DECISION: Finding of contractual terms as contended for by plaintiffs. Short minutes or written submissions to be brought in as to damages, interest and terms of declaration

CATCHWORDS: CONTRACTS - determining terms of oral contracts - credibility of witnesses - whether adverse inference should be drawn from unavailability of one plaintiff for cross-examination

CASES CITED: Haines v Bendall (1991) 172 CLR 60
Jones v Dunkel (1959) 101 CLR 298
NRMA v Morgan (No 3) [1999] NSWSC 768
Ruby v Marsh (1975) 132 CLR 642

PARTIES :
Antonio Nigro - First Plaintiff
Maria Incoronata Nigro - Second Plaintiff
Vincenzo Pirrello - Third Plaintiff
Carmela Pirrello - Fourth Plaintiff
Filippo Parisi - First Defendant
Domenica Rosa Parisi - Second Defendant

FILE NUMBER(S): SC 5245/02

COUNSEL: Mr M.B.J. Lee/Mr A. Crossland - Plaintiffs
Mr A.M. Gruzman - Defendants

SOLICITORS: Levitt Robinson - Plaintiffs
Atkinson Vinden - Defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

FRIDAY, 10 DECEMBER 2004

5245/02 – ANTONIO NIGRO & 3 ORS v FILIPPO PARISI & ANOR

JUDGMENT

1 These proceedings are brought by Antonio (“Tony”) Nigro and his wife Maria Nigro and Vincenzo (“Vince”) Pirrello and his wife Carmela Pirrello against Filippo (“Phillip”) Parisi and his wife Domenica Parisi. Together with Bartolo (“Bob”) Parisi and his wife, and Giovanni (“John”) Parisi and his wife, the parties conducted certain business operations through various corporate vehicles.

2 The husbands were the more active parties in the business ventures. In the narrative that follows, I shall, for convenience, refer to the husbands alone, except where it is necessary to refer particularly to the wives. Moreover, because some of the husbands share the same family name, I shall, for convenience, refer to each by the first name by which he is familiarly known.

3 It is accepted by the parties that, prior to 1996, each couple held a 20% beneficial interest in “the business”. There were two arms to the business. First, there was the bathroom and kitchen component, primarily involving the importation and sale of Italian bathroom and kitchen fittings and the sale of local bathroom and kitchen products. This part of the business was carried on through five corporate entities: Gieffe Imported Pty Ltd, Gieffe Pty Limited, Gieffe Tiles Pty Limited, Bezipark Pty Limited and Parisi Industries Bathroomware Pty Limited. The second component of the business entailed property development. It operated through Australian Assurance Agencies Pty Limited (“AAA”) and undertook an unsuccessful joint venture development in Drummoyne. This aspect of the business was a more recent addition to the established bathroom and kitchen component.

4 Capital was raised for the business by loans secured over the properties owned by the business (in that they were owned by one of the several companies). These properties were at 63-65 Pyrmont Bridge Road Camperdown, 198-200 Norton Street Leichhardt…

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 Nigro v Parisi

Details

AGLC: Nigro v Parisi [2004] NSWSC 1177
Case: [2004] NSWSC 1177
Decision Date: 10 December 2004

CaseChat Overview and Summary

The case of Nigro v Parisi involved two plaintiffs, Nigro and the estate of the late plaintiff, who were involved in a dispute over a commercial contract. The defendants were Parisi and his company. The dispute centred around the terms of an oral agreement, with the plaintiffs asserting that they had an agreement for the defendants to purchase certain equipment. The defendants denied the existence of such an agreement and claimed that the plaintiffs had breached their contract to sell the equipment. The matter was heard in the Supreme Court of South Australia.

The legal issues before the court included the determination of whether the plaintiffs and defendants had entered into an enforceable contract and, if so, what the terms of that contract were. A significant issue was the credibility of the witnesses, particularly the unavailability of one plaintiff for cross-examination, which led to the question of whether an adverse inference should be drawn. The court had to weigh the testimonies of the parties and determine the weight to be given to the oral agreement in the absence of written documentation.

The court found that the plaintiffs had established the existence of an oral agreement to purchase the equipment, despite the defendants' denials. The court held that the plaintiffs' testimonies were credible and that the defendants' lack of written evidence did not undermine the oral agreement. The unavailability of one plaintiff for cross-examination did not warrant an adverse inference, as it was not shown to be due to any wrongdoing by the plaintiff. The court ruled in favour of the plaintiffs, finding that the defendants were liable for the purchase price of the equipment. The court ordered the defendants to pay the plaintiffs the amount due under the oral contract.

Orders