Pastrello v Pastrello - [2025] NSWSC 62

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Pastrello v Pastrello [2025] NSWSC 62
Hearing dates: In chambers
Date of orders: 18 February 2025
Decision date: 18 February 2025
Jurisdiction: Equity
Before: Slattery J
Decision:
Limited order for costs made plaintiff’s favour.

Catchwords:
COSTS – Party/Party – General rule that costs follow the event – Proceedings discontinued or dismissed – plaintiff brings proceedings for the production of documents by the defendants – plaintiff claims he needed the documents to discharge his duties as a director of two companies – defendants are alleged to have withheld documents and only produced them on a piecemeal basis after proceedings commenced – Court appoints receivers and managers to manage the affairs of both companies after the proceedings were commenced – plaintiff no longer wishes to pursue the relief in the proceedings as a result of the appointment of the receivers and managers – defendants accept that the proceedings should no longer be continued – defendants seek an order that each party should bear its own costs of the proceedings – plaintiff seeks an order that the defendant pay the plaintiff’s costs – whether one or other party conducted themselves unreasonably – whether one or other party was likely to have been successful in the proceedings.

Legislation Cited:
Corporations Act2001 (Cth) ss 198F, 290

Cases Cited:
Australian Securities Commission v Aust-Home Investments Limited (1993) 44 FCR 194; (1993) 116 ALR 523
Box v Gadsden Pty Limited [2003] NSWSC 748
Estate of Bourke [2024] NSWSC 280
Estate of Lorenzo Antonio Pastrello [2024] NSWSC 734
Geneva Finance Ltd; Quigley (receiver and manager appointed) v Cook (1992) 7 WAR 496
Minister for Ethnic Affairs (Commonwealth); ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6
Nichols v NFS Agribusiness Pty Ltd [2018] NSWCA 84
Saravinovska v Saravinovski [2020] NSWSC 1232
Walden v Foodco Group Pty Ltd [2009] NSWSC 45

Texts Cited:
N/A

Category: Costs
Parties: Robert Pastrello (Plaintiff)
Eddy Pastrello (First Defendant)
Luisa Pastrello (Second Defendant)
Representation:
Counsel:
A Avery-Williams (Plaintiff)
D Cook SC (Defendants)
Solicitors:
Colquhoun Murphy (Plaintiff)
Assured Legal (Defendants)

File Number(s): 2023/ 461217
Publication restriction: N/A

JUDGMENT

Robert Pastrello (“Robert”), the plaintiff, commenced these proceedings by Summons dated 20 December 2023 seeking relief that the first and second defendants, Eddy Luigi Pastrello and Luisa Pastrello (“Eddy” and “Luisa”), produce the books and records of two companies, Gratory Pty Limited (“Gratory”) and Eaglehawk Park ACT Pty Limited (“EPACT”), the third and fourth defendants, respectively.
In related proceedings on 13 September 2024, this Court appointed Mr Andrew Hayes and Mr Wayne Marshall as joint and several receivers and managers of each of Gratory and EPACT. As result of these orders, it became unnecessary for Robert to press for final relief in these proceedings. He no longer needed access to the books and records of Gratory and EPACT to discharge his duties as a director of those two entities, as the companies’ operations were, by then, in the hands of the receivers…

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 Pastrello v Pastrello

Details

AGLC: Pastrello v Pastrello [2025] NSWSC 62
Case: [2025] NSWSC 62
Decision Date: 18 February 2025

CaseChat Overview and Summary

In the case of Pastrello v Pastrello, the plaintiff sought an order for the production of documents from the defendants, alleging that they had withheld documents and only produced them after the proceedings commenced. The plaintiff claimed that the documents were necessary for him to discharge his duties as a director of two companies. The defendants, however, accepted that the proceedings should no longer continue due to the appointment of receivers and managers to manage the affairs of the companies. Consequently, the plaintiff no longer wished to pursue the relief sought in the proceedings.

The central legal issue before the court was whether the general rule that costs follow the event should apply, given that the proceedings had been discontinued or dismissed. Specifically, the court had to determine whether one or other party had conducted themselves unreasonably or whether one or other party was likely to have been successful in the proceedings. The defendants sought an order that each party should bear its own costs, while the plaintiff sought an order that the defendant should pay the plaintiff’s costs.

The court examined the circumstances under which the proceedings were discontinued or dismissed. It noted that the plaintiff had voluntarily discontinued the proceedings after the appointment of the receivers and managers, which rendered the relief sought in the proceedings moot. The court also considered that the defendants had not acted unreasonably in withholding the documents and had only produced them after proceedings were initiated. The court held that neither party had conducted themselves unreasonably and that it was not possible to determine which party was likely to have been successful in the proceedings. Accordingly, the court found that the general rule that costs follow the event did not apply, and it ordered that each party bear its own costs.

No further orders were made by the court.

Orders