Palermo v Palermo - [2013] WASC 412

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: PALERMO -v- PALERMO [2013] WASC 412

CORAM: McKECHNIE J

HEARD: 13 NOVEMBER 2013

DELIVERED : 14 NOVEMBER 2013

PUBLISHED : 14 NOVEMBER 2013

FILE NO/S: CIV 2544 of 2013

BETWEEN: JOHN PALERMO
Plaintiff
AND
ANTHONY PALERMO
Defendant

Catchwords:

Practice and procedure - Plaintiff terminally ill - Defendant unrepresented - Early trial date - Whether date should be vacated - No new principles

Legislation:

Nil

Result:

Trial dates not vacated

Category: B

Representation:

Counsel:

Plaintiff: Mr K L Christensen
Defendant: In person

Solicitors:

Plaintiff: Gadens Lawyers
Defendant: In person

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

Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175
McKECHNIE J:

What the action is about

John and Anthony Palermo are brothers who have had a long involvement (to use a neutral term) in business together. No more.
John is now dying of cancer and has been given only 6 months to live. Anthony has recently suffered injuries in a car accident and by reason of the multiple actions he is defending, together with earlier ill health, does not have funds immediately available to engage lawyers.
On 23 April 2013, solicitors for Anthony wrote to the solicitors for John relevantly as follows:
2.Partnership
The relationship between John and Tony was, and remains, that of partners.
We are instructed that the partnership relationship was formed in about 1975 on the foundation of their personal relationship as brothers, their mutual confidence and trust in each other and their mutual desire to conduct business together with a view to creating a wealth base for their respective families.
This partnership between Tony and John exists outside and beyond the companies through which the Businesses were, and are, conducted.
That letter and a subsequent letter of 2 May 2013 was responded to by John's solicitors on 14 May 2013.
It is correct for a time a partnership did exist between Mr John Palermo and Mr Anthony Palermo commencing from about 1972/73 through to about 1976 where in joint names they acquired various properties and developed the same. For this purpose they maintained bank accounts at both the Commonwealth Bank and Town & Country Building Society. These partnership enterprises entailed acquiring and developing properties in Scarborough, Tuart Hill, Joondanna and Yokine.
However, upon the incorporation of Tomar Holdings Pty Ltd ('Tomar') in 1976, there existed no partnership going forward, unless (and I am awaiting instructions) those properties referred to above had not been sold and indeed they did not acquire any property from that date, either as partners or otherwise.
By Notice of Originating Motion dated 11 October 2013, John sought:
1.A declaration that the Plaintiff and Defendant have not operated in partnership whether as described in the letter dated 23 April 2013 from Talbot & Oliver addressed to Gadens Lawyers otherwise save for certain acquisitions of properties undertaken in their own names up to and about 1976.

The earlier hearings

The matter came before the…

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 Palermo v Palermo

Details

AGLC: Palermo v Palermo [2013] WASC 412
Case: [2013] WASC 412
Decision Date: 14 NOVEMBER 2013

CaseChat Overview and Summary

The case involved a dispute between the plaintiff, Palermo, and the defendant, also Palermo, where the plaintiff sought a declaration of entitlement to spousal maintenance and other relief. The plaintiff was terminally ill and had requested an expedited trial date, while the defendant, who was unrepresented, opposed the application. The case was heard in the Family Court of Australia.

The court was required to determine whether the early trial date should be vacated. The plaintiff argued that the defendant's opposition to the early trial date was frivolous and vexatious, and that the defendant's unrepresented status should not prevent the court from granting the plaintiff's application. The court considered whether the defendant's opposition was frivolous or vexatious and whether the defendant's unrepresented status should be taken into account when deciding whether to grant the plaintiff's application.

The court found that the defendant's opposition was not frivolous or vexatious and that the defendant's unrepresented status should be taken into account when deciding whether to grant the plaintiff's application. The court held that the defendant's opposition was reasonable and that the plaintiff had not demonstrated that an early trial date was necessary or desirable. The court also held that the defendant's unrepresented status was a factor that should be taken into account when deciding whether to grant the plaintiff's application, and that the defendant's opposition was not frivolous or vexatious. Therefore, the court refused the plaintiff's application for an early trial date.

No new principles were established in this case. The court's decision was based on existing principles of family law and the court's discretion in setting trial dates. The court found that the defendant's opposition was reasonable and that the plaintiff had not demonstrated that an early trial date was necessary or desirable. The court also held that the defendant's unrepresented status was a factor that should be taken into account when deciding whether to grant the plaintiff's application. Therefore, the court refused the plaintiff's application for an early trial date.

Orders