Palmiotti v Palmiotti
[2001] WASC 132
PALMIOTTI -v- PALMIOTTI & ORS [2001] WASC 132
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASC 132 | |
| Case No: | CIV:2330/1999 | 18 MAY 2001 | |
| Coram: | MASTER SANDERSON | 31/05/01 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| PDF Version |
| Parties: | CORRADO PALMIOTTI ANTONIO GIUSEPPE PALMIOTTI CHRISTINE THERESE PALMIOTTI PALMIOTTI & CO PTY LTD (ACN 009 005 261) PASQUALINA PALMIOTTI |
Catchwords: | Practice and procedure Application for summary judgment Turns on own facts |
Legislation: | Nil |
Case References: | Ramage v Waclaw (1988) 12 NSWLR 84 Rangewood Investments Pty Ltd v Hellyer (1998) 19 WAR 170 Australian Can Co v Levin & Co [1947] VLR 332 Corrin v Patton (1990) 169 CLR 540 Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 Gava v Grljusich [1999] WASC 13 Re Atkinson [1971] VR 612 Re Wrightson [1908] 1 Ch 789 Webster v Lampard (1993) 177 CLR 598 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
ANTONIO GIUSEPPE PALMIOTTI
First Defendant
CHRISTINE THERESE PALMIOTTI
Second Defendant
PALMIOTTI & CO PTY LTD (ACN 009 005 261)
Third Defendant
PASQUALINA PALMIOTTI
Fourth Defendant
Catchwords:
Practice and procedure - Application for summary judgment - Turns on own facts
(Page 2)
Legislation:
Nil
Result:
Application dismissed
Representation:
Counsel:
Plaintiff : Mr M S Macdonald
First Defendant : Mr R E Keen
Second Defendant : Mr R E Keen
Third Defendant : Mr R E Keen
Fourth Defendant : Mr R E Keen
Solicitors:
Plaintiff : Macdonald Rudder
First Defendant : Ron Kennealy
Second Defendant : Ron Kennealy
Third Defendant : Ron Kennealy
Fourth Defendant : Ron Kennealy
Case(s) referred to in judgment(s):
Ramage v Waclaw (1988) 12 NSWLR 84
Rangewood Investments Pty Ltd v Hellyer (1998) 19 WAR 170
Case(s) also cited:
Australian Can Co v Levin & Co [1947] VLR 332
Corrin v Patton (1990) 169 CLR 540
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Gava v Grljusich [1999] WASC 13
Re Atkinson [1971] VR 612
Re Wrightson [1908] 1 Ch 789
Webster v Lampard (1993) 177 CLR 598
(Page 3)
1 MASTER SANDERSON: This is the plaintiff's application for summary judgment on part of its claim. The application was made well outside the time limited by O 14 r 1 of the Rules of the Supreme Court 1971 and accordingly leave was needed to bring the application. The delay in bringing the application was explained and no objection was taken by the defendants to the grant of leave. There will, therefore, be an order that the plaintiff have leave to bring this application.
2 To understand the nature of the application it is necessary to say something about the plaintiff's claim.
3 Margherita Palmiotti (the deceased) died on 20 July 1998. The plaintiff, the first defendant and the fourth defendant are all children of the deceased. The second defendant is the widow of Michele Palmiotti, a son of the deceased. The third defendant is a corporation and trustee of the Palmiotti Unit Trust ("the Trust"). Between 1963 and 1983 the deceased, the plaintiff, the first defendant and Michele Palmiotti were carrying on a crayfishing business together in partnership. The third defendant was incorporated in 1981 and from 1983 it ran the crayfishing business formerly conducted by the partnership. For present purposes it is unnecessary to detail the respective interests of the former partners in the third defendant or to go into detail as to how the business was conducted.
4 Consistent with prudent accounting practice each year accounts were drawn for the Trust. These accounts contained balance sheets which showed the respective interests of each of the unit holders. The plaintiff has a number of complaints with respect to the way business was conducted within the Trust. Most of these are not presently of concern. This application concerns only one aspect of the transactions which took place within the Trust. The plaintiff's claim is best explained by quoting par 14 through to par 14F of the amended statement of claim. (The paragraphs quoted are shorn of particulars and paragraphs, or part of paragraphs, which have been deleted by amendment are omitted):
"14. As at the date of death of the deceased (namely 20 July 1998):
(a) the sum of $154,240.86 (Fund) stood to the credit of the deceased's capital and current account with the third defendant in its capacity as trustee of the Palmiotti Unit Trust as disclosed in the financial statements of the Palmiotti Unit Trust for the year ended 30 June 1998.
(Page 4)
- (c) the third defendant held and now holds the Fund in trust for the deceased alternatively:
(i) the third defendant held and now holds $6480.80 in trust for the deceased; and
(ii) was and remains indebted to the deceased for the remainder, namely $147,760.06;
- 14A. In or about July 1999:
(a) the accounts of the Palmiotti Unit Trust were amended by dividing $147,760.12 of the Fund between the first and second defendants in virtually equal shares ($73,879.72 to the first defendant and $73,880.40 to the second defendant), leaving the estate of the deceased with a closing balance at the 30 June 1998 of $6,480.74.
(c) The financial statements of the Palmiotti Unit Trust for the financial years ending 30 June 1995, 1996, 1997 and 1998 were amended to reflect the amendment referred to in paragraph 14A(a) above;
14B. The first and second defendants:
(a) knew of the facts referred to in paragraphs 14 above; and
(b) authorised the conduct referred to in paragraph 14A above.
14C The first defendant has failed to pay to the estate of the deceased said sum of $73,879.72 credited to his account with the Palmiotti Unit Trust or any part thereof or account to the estate of the deceased therefor or any part thereof.
14D The second defendant has failed to pay to the estate of the deceased said sum of $73,880.40 credited to his account with Palmiotti Unit Trust or any part thereof or account to the estate of the deceased therefor or any part thereof;
(Page 5)
- 14E The third defendant has failed to pay the Fund or any part thereof to the estate of the deceased or account to the estate of the deceased for Fund or any part thereof.
14F Each of the first second and third defendants deny that it is liable to pay the Fund or any part thereof to the estate of the deceased or account to the estate of the deceased for Fund or any part thereof;"
5 There is no dispute between the parties as to the material facts pleaded by the plaintiff. There is a dispute between the parties as to why certain events occurred but that is not a dispute which could be resolved on a summary judgment application. For the purposes of this application counsel for the plaintiff accepted as a fact that prior to 30 June 1995 the deceased decided to gift the Fund (as that word is defined in par 14(a) of the statement of claim) to the first and second defendants. Although the accountant for the Trust was instructed to amend the accounts accordingly, he did not do so until 1999. At that time amendments were made to the accounts for the years 1995 through to 1998 showing that the $147,760.12 had been distributed to the first and second defendants by way of gift from the deceased.
6 The argument put by the plaintiff can be summarised very simply. It was submitted that the $147,760.12 standing to the credit of the deceased was a chose in action. If the deceased wished to assign that chose in action without consideration to the first and second defendants - in other words if the deceased wished to gift the chose in action to the first and second defendants - she was required to comply with s 20 of the Property Law Act. That is to say, the assignment had to be in writing and written notice had to be provided to the third defendant of the assignment. As neither of these two steps were taken there was not an effective assignment of the debt either at law or in equity. According, the third defendant was indebted to the estate of the deceased in the sum of $147,760.12.
7 In her chamber summons the plaintiff sought an order in terms of par 3 of the prayer for relief. That paragraph is in the following terms:
"The third defendant do pay the executor of the estate of the deceased $154,240.86 together with interest thereon at the rate prescribed by Section 142 of the Supreme Court Act as amended, as from and including 1 July 1995 until judgment,
(Page 6)
- calculated pursuant to the provisions of Section 32 of the said Act."
8 There is a difficulty with that order. It is apparent from the 1999 accounts that the $147,760.12 has been distributed to the first and second defendants. Properly considered, what the plaintiff is seeking to recover is the distribution made to each of the first and second defendants. This is recognised by par 3A and par 3B of the prayer for relief which were inserted after the application for summary judgment was brought. To illustrate the point it is enough if I quote par 3A:
"The first defendant do pay the executor of the estate of the deceased $73,879.72 together with interest thereon at the rate prescribed by Section 142 of the Supreme Court Act as amended, as from and including 1 July 1995 until judgment, calculated pursuant to the provisions of Section 32 of the said Act."
9 It is important to analyse with some precision precisely what relief the plaintiff is seeking. The plaintiff is a residuary legatee under the Will of the deceased. The first defendant is the executor of the estate of the deceased. The first defendant, perhaps not surprisingly, has declined to take any steps to recover the $147,760.12 distributed to him and the second defendant. The plaintiff says that being the case and as she is a beneficiary under the Will of the deceased, she is entitled to bring an action compelling the first and second defendants to repay the third defendant and in turn compelling the third defendant to make payment of such sums to the first defendant in his capacity as executor of the deceased's estate. The relief sought by the plaintiff against all defendants is, as I understand the prayer for relief, a claim in each case for a money judgment. In other words, the plaintiff is seeking relief in law rather than equity.
10 By their submissions in answer to this application the defendants raised the question of the capacity of the plaintiff to bring an action of this nature. It was submitted that if the estate of the deceased was entitled to the $147,760.12, proceedings should be issued by the executor - the first defendant. It was submitted that in this case there were no special circumstances as would justify the plaintiff being accorded standing to bring the application. On that basis it was said that the application must fail.
(Page 7)
11 On behalf of the plaintiff it is contended that this is a case where there are special circumstances which would justify the plaintiff being accorded standing to bring the proceedings. In particular, the plaintiff refers to the fact that the first defendant is the executor of the deceased's Will, a director of the third defendant and on the plaintiff's argument, indebted to the third defendant. In these circumstances it is said by the plaintiff that it is understandable the first defendant should refuse to take action to recover funds due to the estate, albeit that such inaction is improper.
12 As I have concluded that summary judgment should not be ordered in this case, it is inappropriate that I deal in any detail with the plaintiff's arguments. However, in deference to the quality of the argument put by counsel for the plaintiff, I should state briefly why I have decided it would not be appropriate to order summary judgment. In Ramage v Waclaw (1988) 12 NSWLR 84, Powell J undertook a detailed analysis of the cases bearing upon the question of when a beneficiary of an estate may bring proceedings on behalf of the estate. Even assuming, without deciding, that the circumstances of this case are exceptional and that the plaintiff has standing to bring the application, the suit must be brought in equity: See page 91. The relief claimed in this action is a common law remedy.
13 It may be that the plaintiff could amend her claim to seek either a declaration (Rangewood Investments Pty Ltd v Hellyer (1998) 19 WAR 170) or a mandatory injunction. But there are difficulties with either of these two courses of action. A declaration is of little value to the plaintiff as it may or may not achieve the plaintiff's aims. The grant of a mandatory injunction is a discretionary remedy and care must be exercised when the order sought is for the payment of money.
14 Overlaying all these concerns is the fact that the application is for judgment on part of the claim only. In my view there is a real risk that any relief granted on this application might cut across relief which might otherwise be granted at trial.
15 Accordingly I would dismiss the application for summary judgment. Subject to hearing from the parties the costs of this application should be costs in the cause.
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