Parisi v Nigro - [2006] NSWCA 121

New South Wales

Court of Appeal

CITATION: Filippo Parisi & Anor v Antonio Nigro & Ors [2006] NSWCA 121

HEARING DATE(S): 2 May 2006

JUDGMENT DATE:
16 May 2006

JUDGMENT OF: Beazley JA at 1; Ipp JA at 19; Basten JA at 20

EX TEMPORE JUDGMENT DATE: 05/02/2006

DECISION: 1. The notice of motion filed 26 April 2006 is dismissed; 2. The appeal is dismissed; 3. The appellants are to pay the respondents costs of the appeal on a party/party basis up to and including 26 April 2006 and thereafter costs are to be paid on an indemnity basis, including costs of today on the basis of a brief fee as if this matter had proceeded to a hearing of the appeal.

CASES CITED: Jones v Dunkel (1959) 101 CLR 298
Nigro v Parisi [2004] NSWSC 1117

PARTIES: Filippo Parisi (First Appellant)
Domenica Rosa Parisi (Second Appellant)
Antonio Nigro (First Respondent)
Maria Incoronata Nigro (Second Respondent)
Vincenzo Pirrello (Third Respondent)
Carmela Pirrello (Fouth Respondent)

FILE NUMBER(S): CA CA 40483/05

COUNSEL: B Washington (Appellants)
MBJ Lee (Respondents)

SOLICITORS: HAL Lawyers (Appellants)
Levitt Robinson Solicitors (Respondents)

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S): 5245/02

LOWER COURT JUDICIAL OFFICER: Barrett J

LOWER COURT DATE OF DECISION: 12/10/2004

LOWER COURT MEDIUM NEUTRAL CITATION: Nigro v Parisi [2004] NSWSC 1177

- 5 -

CA 40483/05

BEAZLEY JA
IPP JA
BASTEN JA
Tuesday 2 May 2006

FILLIPO PARISI & ANOR v ANTONIO NIGRO & ORS

Judgment

1 BEAZLEY JA: On 26 April 2006 the appellants filed a notice of motion in which they sought an order inter alia that the hearing of appeal matter CA 40483 of 2005, which was set down for today, be vacated.

2 The purpose of seeking the vacation of the hearing date was to allow new proceedings to be commenced in the Equity Division seeking to set aside the judgment in respect of which the appeal was brought, being the judgment of Barrett J, given on 10 December 2004 (Nigro v Parisi [2004] NSWSC 1117), on the basis that it had been procured or contaminated by the fraud of the third respondent, Mr Pirello.

3 A draft statement of claim had been prepared in which it had been alleged inter alia that a report of a robbery by the third respondent to police on 12 September 2004, two days before the trial in the matter, was false and had been deliberately and knowingly made for the purpose of Mr Pirello fraudulently, wrongfully and falsely avoiding having to give evidence at the trial.

4 As it turned out, at the trial, Mr Pirello did not give oral evidence, nor was his affidavit read. A medical certificate was presented to the Court indicating that Mr Pirello was suffering from a post-traumatic stress disorder with associated panic attacks as a reaction to the alleged robbery and that he was, as a consequence, too traumatised to attend Court for the purposes of giving evidence in the proceedings.…

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 Parisi v Nigro

Details

AGLC: Filippo Parisi v Antonio Nigro [2006] NSWCA 121
Case: [2006] NSWCA 121
Decision Date: 16 May 2006

CaseChat Overview and Summary

The appeal in *Parisi v Nigro* concerned a dispute between the parties, heard by Beazley, Ipp and Basten JJA in the Court of Appeal of New South Wales. The precise nature of the underlying dispute is not detailed in the provided text, but the court was required to consider the parties' respective rights and obligations as presented in the appeal.

The central legal issues before the court revolved around the determination of the appeal itself and the appropriate orders to be made in relation to the notice of motion filed by the appellants. The court was tasked with deciding whether to uphold or dismiss the appeal and the motion, and consequently, to determine the allocation of costs.

The court ultimately dismissed both the notice of motion and the appeal. In its orders, the court directed that the appellants were to bear the respondents' costs of the appeal on a party/party basis up to and including 26 April 2006. Thereafter, costs were to be paid on an indemnity basis, specifically including the costs of the day of the judgment, calculated as if the appeal had proceeded to a hearing with a brief fee.

Orders

Orders of the court

1. The notice of motion filed 26 April 2006 is dismissed; 2. The appeal is dismissed; 3. The appellants are to pay the respondents costs of the appeal on a party/party basis up to and including 26 April 2006 and thereafter costs are to be paid on an indemnity basis, including costs of today on the basis of a brief fee as if this matter had proceeded to a hearing of the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Filippo Parisi & Anor v Antonio Nigro & Ors [2006] NSWCA 121
HEARING DATE(S):	2 May 2006
JUDGMENT DATE:	16 May 2006
JUDGMENT OF:	Beazley JA at 1; Ipp JA at 19; Basten JA at 20
EX TEMPORE JUDGMENT DATE:	05/02/2006
DECISION:	1. The notice of motion filed 26 April 2006 is dismissed; 2. The appeal is dismissed; 3. The appellants are to pay the respondents costs of the appeal on a party/party basis up to and including 26 April 2006 and thereafter costs are to be paid on an indemnity basis, including costs of today on the basis of a brief fee as if this matter had proceeded to a hearing of the appeal.
CASES CITED:	Jones v Dunkel (1959) 101 CLR 298 Nigro v Parisi [2004] NSWSC 1117
PARTIES:	Filippo Parisi (First Appellant) Domenica Rosa Parisi (Second Appellant) Antonio Nigro (First Respondent) Maria Incoronata Nigro (Second Respondent) Vincenzo Pirrello (Third Respondent) Carmela Pirrello (Fouth Respondent)
FILE NUMBER(S):	CA CA 40483/05
COUNSEL:	B Washington (Appellants) MBJ Lee (Respondents)
SOLICITORS:	HAL Lawyers (Appellants) Levitt Robinson Solicitors (Respondents)
LOWER COURT JURISDICTION:	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S):	5245/02
LOWER COURT JUDICIAL OFFICER:	Barrett J
LOWER COURT DATE OF DECISION:	12/10/2004
LOWER COURT MEDIUM NEUTRAL CITATION:	Nigro v Parisi [2004] NSWSC 1177