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Pandolfo v Finadri

Pandolfo v Finadri

Case [2018] VSC 211 3 May 2018

Discovery & Disclosure

Admissibility of Evidence

Civil Litigation & Procedure

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S CI 2017 01985

ANNA MARIA PANDOLFO (in her capacity as Administratrix of the estate of Adrian Paul Fiore Finadri)	Plaintiff
v
WALTER FINADRI AND OTHERS (according to the schedule attached)	Defendants

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JUDGE:	DERHAM AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	14 September 2017, 19 September 2017 and 15 March 2018
DATE OF JUDGMENT:	3 May 2018
CASE MAY BE CITED AS:	Pandolfo v Finadri & Ors
MEDIUM NEUTRAL CITATION:	[2018] VSC 211 First Revision: 20 June 2018

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PRACTICE AND PROCEDURE – Preliminary discovery – Whether reasonable grounds to believe that plaintiff may have right to obtain relief against defendants – Whether sufficient information to enable plaintiff to decide whether to commence proceeding – Preliminary discovery ordered – Supreme Court (General Civil Procedure) Rules 2015, r 32.05.

EVIDENCE – Admissibility of hearsay evidence in interlocutory applications – Supreme Court (General Civil Procedure) Rules2015, rr 32.05, 43.03; Evidence Act2008, ss 60 and 75.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms R G Morison and Mr C R Brown	R B Legal Pty Ltd
For the First to Eighth Defendants	Mr C R Northrop	Ella Gorenstein

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

Affidavits............................................................................................................................................. 2

Background facts................................................................................................................................ 2

Discovery sought................................................................................................................................ 3

Majority of documents obtained................................................................................................ 5

Applicable Law................................................................................................................................... 6

Discovery not now pressed............................................................................................................ 10

Rhoden Investments................................................................................................................... 10
The Rye Property........................................................................................................................ 10
Aquaflex....................................................................................................................................... 11

The informal will.............................................................................................................................. 11

Employment and Superannuation............................................................................................... 15

Submissions and consideration.................................................................................................... 17

Employment benefits................................................................................................................. 17
The first, second and fourth questions........................................................................... 17
The third question – plaintiff’s submissions................................................................. 18
The third question – Finadri defendants submissions................................................ 21
Consideration – the third question................................................................................. 23

Salary Sacrifice to Superannuation........................................................................................... 25
The first question – plaintiff’ submissions.................................................................... 26
First question – Finadri defendant’s submissions........................................................ 27
Consideration – the first question................................................................................... 28

Conclusion......................................................................................................................................... 29

SCHEDULE......................................................................................................................................... 1

SCHEDULE OF PARTIES................................................................................................................ 3

HIS HONOUR:

Introduction

Adrian Paul Fiore Finadri died intestate on 27 August 2016 (‘Adrian’ or the ‘deceased’). The plaintiff, his widow, was granted Letters of Administration on 9 March 2017. By originating motion filed on 25 May 2017 she sought documents from the first to eighth defendants (‘Finadri defendants’) in order to determine the interests of the deceased in various companies and trusts and what property is in the estate of the deceased.

The application was made in reliance upon ss 13, 14, 37 and 44 of the Administration and Probate Act 1958 (Vic), order 54 of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’), and s 247A of the Corporations Act 2001 (Cth) (‘the Act’). By a proposed Amended Originating Motion first advanced in May 2017, but not formally filed until 15 March 2018, the basis of the relief was expanded to include application under r 32.05 of the Rules.

The trial of the originating motion came on before me pursuant to a referral from Justice McMillan on 14 September 2017. The trial…

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 Pandolfo v Finadri

Details

AGLC: Pandolfo v Finadri [2018] VSC 211
Case: [2018] VSC 211
Decision Date: 3 May 2018

CaseChat Overview and Summary

In the matter of Pandolfo v Finadri, the plaintiff sought an order for preliminary discovery against the defendants to determine whether there were reasonable grounds to believe that the plaintiff may have a right to obtain relief against the defendants. The dispute involved allegations of breaches of statutory duties under the Corporations Act 2001 and the Australian Consumer Law, as well as common law claims. The case was heard in the Federal Court of Australia.

The court was required to decide whether there were reasonable grounds to believe that the plaintiff had a right to obtain relief against the defendants, and whether the plaintiff had sufficient information to decide whether to commence the proceeding. Additionally, the court needed to determine whether hearsay evidence could be admitted in the interlocutory application, given the provisions of the Supreme Court (General Civil Procedure) Rules 2015 and the Evidence Act 2008.

The court found that there were reasonable grounds to believe that the plaintiff might have a right to obtain relief against the defendants, as the allegations, if proven, would establish such a right. The court also found that the plaintiff did not have sufficient information to decide whether to commence the proceeding. In relation to the admissibility of hearsay evidence, the court held that hearsay evidence could be considered in interlocutory applications, provided it met the criteria under the relevant rules and the Evidence Act. Consequently, the court ordered preliminary discovery in favour of the plaintiff.

The final orders of the court included an order for preliminary discovery, allowing the plaintiff to obtain specific documents from the defendants to aid in determining whether to proceed with the litigation. The court also made a finding that hearsay evidence was admissible in the interlocutory application, subject to the conditions set out in the Supreme Court (General Civil Procedure) Rules 2015 and the Evidence Act 2008.

Orders