Pennimpede v Pennimpede

[2010] NSWCA 121

New South Wales

Court of Appeal

CITATION:	Pennimpede v Pennimpede [2010] NSWCA 121
HEARING DATE(S):	21 May 2010
JUDGMENT DATE:	21 May 2010
JUDGMENT OF:	Hodgson JA at 1; Tobias JA at 42; Macfarlan JA at 43
EX TEMPORE JUDGMENT DATE:	21 May 2010
DECISION:	Appeal dismissed with costs.
CATCHWORDS:	TRUSTS – Transfer of property between family members – Whether evidence established creation of a trust.
LEGISLATION CITED:	Conveyancing Act 1919 ss 23C and 54A
CATEGORY:	Principal judgment
CASES CITED:	Watson v Foxman (1995) 49 NSWLR 315
PARTIES:	Vito PENNIMPEDE (appellant) Gerard PENNIMPEDE (first respondent) Rita PENNIMPEDE (second respondent) Pasquale PENNIMPEDE (third respondent)
FILE NUMBER(S):	CA 2009/298221
COUNSEL:	M R ALDRIDGE SC/ M EVANS (appellant) D A SMALLBONE (first and second respondents) Submitting Appearance (third respondent)
SOLICITORS:	Kells The Lawyers (appellant) Russell Mclelland Brown Lawyers (first and second respondents) Autore & Associates (third respondent)
LOWER COURT JURISDICTION:	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S):	SC 1372/04
LOWER COURT JUDICIAL OFFICER:	Bryson AJ
LOWER COURT DATE OF DECISION:	27 February 2009
LOWER COURT MEDIUM NEUTRAL CITATION:	Vito Pennimpede v Gerard Pennimpede & 2 Ors [2009] NSWSC 85

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2009/298221

HODGSON JA
TOBIAS JA
MACFARLAN JA

Friday 21 MAY 2010

Vito PENNIMPEDE v Gerard PENNIMPEDE and Others

Judgment

1 HODGSON JA: On 27 February 2009 Bryson AJ gave his decision in proceedings concerning the beneficial ownership of a factory at Cringila near Wollongong involving a number of members of one family. I will identify the parties by their forenames for ease of reference.

2 The plaintiff was Vito and the defendants were Vito's brother Gerard, Gerard's wife Rita, and Vito's brother Pasquale.

3 In the proceedings Pasquale put on a cross-claim against Gerard and Rita, and Gerard and Rita put on a cross-claim against Pasquale and Vito. The primary judge's orders disposing of the cross-claims are not relevant to this appeal.

4 Relevantly to this appeal, the primary judge gave judgment for Gerard and Rita on Vito's claim against them, and ordered Vito to pay Gerard and Rita's costs of those proceedings. Vito appeals from that decision. Pasquale has put on a submitting appearance.

5 The respondents in their submissions raised a question whether leave to appeal was necessary. It seems to me that, where there are final orders disposing of a claim and the only outstanding matters concern cross-claims, there is generally a final order so that leave is not necessary.

6 I will outline the circumstances giving rise to the proceedings and the appeal.

7 Vito and Pasquale were the only directors and shareholders of a company Rainbow Constructions Pty Limited (Rainbow), which carried on a steel fabrication business. In June 1993 the four parties became registered co-owners of the subject land, having purchased it from Rainbow. A 50 per cent share was owned by Gerard and Rita as joint tenants. A 25 per cent share was owned by Vito, and another 25 per cent share was owned by Pasquale. The purchase price of the…