Pennimpede v Pennimpede

Case [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…

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Pennimpede v Pennimpede [2010] NSWCA 121
Case
[2010] NSWCA 121
Decision Date

CaseChat Overview and Summary

The appeal concerned a dispute between family members regarding the ownership of certain property. The central question was whether the evidence established the creation of a trust over that property. The matter came before the New South Wales Court of Appeal.

The court was required to determine whether the appellant had successfully demonstrated the existence of a trust in their favour concerning the property in question. This involved an assessment of the evidence presented to ascertain if the necessary elements for the creation of a trust had been met.

The Court of Appeal considered the evidence in light of established principles for the creation of trusts. It found that the evidence did not establish the requisite intention to create a trust, nor did it demonstrate the certainty of subject matter or objects required for a valid trust. The court applied the principles governing the creation of express trusts, focusing on the intention of the settlor and the certainty of the trust property and beneficiaries.

The appeal was dismissed, and the appellant was ordered to pay the costs of the appeal.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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