Legal Research
Cases
Pennimpede v Pennimpede

Pennimpede v Pennimpede

Case [2009] NSWSC 85 27 February 2009

No judgment structure available for this case.

Type to search within this case.

CITATION: Pennimpede v Gerard Pennimpede & 2 Ors [2009] NSWSC 85
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 17-26th November 2008

JUDGMENT DATE :
27 February 2009

JUDGMENT OF: Bryson AJ

DECISION: At paragraph [186]
Orders:
On the Amended Statement of Claim of Vito Pennimpede:
(1) Give judgment for the defendants
(2) Order that the plaintiff pay the costs of the proceedings of the First and Second Defendants.
On the Second Amended First Cross-Claim of Pasquale Pennimpede:
(3) Order that an inquiry be conducted to ascertain and certify what sums ought to be paid by the Cross Defendants to the Cross Claimant and by the Cross Claimant to the Cross Defendants in relation to the land in folio 3/SP47101 and dealings and claims relating to that land since 25 October 2004; that $560.00 be charged against Pasquale Pennimpede in respect of dealings before 1 July 2003; that credits be allowed to Gerard Pennimpede and Rita Pennimpede for such amounts if any as may be justly allowable to them or either of them against Pasquale Pennimpede for:
(i) Payments as guarantor of debts secured on Mrs. Caterina Pennimpede’s house;
(ii) Dealings with Mr. Scavarelli;
(iii) Any other repairs and expenditure relating to the land;
that all necessary accounts be taken for the purposes of the inquiry, and that judgment be entered for recovery by the party entitled to the balance if any of the sums certified.
(4) Direct that within 28 days Gerard Pennimpede and Rita Pennimpede file and serve accounts and Points of Claim: that within 56 days Pasquale Pennimpede file and serve Points of Defence showing which items are disputed and the grounds of dispute.
(5) Appoint Friday 1 May 2009 at 9.30am before me for a directions hearing on the Inquiry.
(6) Reserve costs of the First Cross Claim
(7) Save as aforesaid dismiss the Cross Claim
Upon the Second Cross Claim of Gerard Pennimpede and Rita Pennimpede:
(8) Order pursuant to section 66G of the Conveyancing Act 1919 that Clayton David Childs and Murray Charles Reid be appointed trustees of the property known as 155-157 Five Islands Road, Unanderra (sometimes described as at Cringila), in the State of New South Wales, being the land comprised in Certificate of Title folio identifier 3/SP47101.
(9) Order that the said land do vest in the said trustees subject to any incumbrances affecting the entirety of the said lands, but free from incumbrances (if any) affecting any undivided share or shares therein, to be held by the said trustees upon the statutory trust for sale under Division 6 of Part IV of the Conveyancing Act 1919.
(10) Order pursuant to section 66I of the Conveyancing Act 1919 that each of the cross-claimants and the first cross defendant herein shall be at liberty to purchase the land whether at auction or by private treaty, upon such terms as the said trustees may think fit as to seeing off or…

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 Pennimpede v Pennimpede

Details

AGLC: Pennimpede v Pennimpede [2009] NSWSC 85
Case: [2009] NSWSC 85
Decision Date: 27 February 2009

CaseChat Overview and Summary

In the case of Pennimpede v Pennimpede, the dispute involved the ownership and subsequent transactions concerning a 50% interest in a property held by the parties. The plaintiffs, Gerard and his wife, claimed that an informal arrangement with their brothers resulted in the purchase of their 50% share being characterised as a mortgage, which their brothers could redeem. The defendants, Vito and another brother, disputed this characterisation and sought clarification on the nature of the property transactions and whether they could require a reconveyance of their interest. The case was heard and determined in the Supreme Court of Victoria.

The primary legal issue before the court was whether the transaction that led to the plaintiffs' acquisition of the 50% interest in the property should be characterised as a purchase or a mortgage. The court also needed to address the nature of a subsequent disposition and transfer of 25% of the property by Vito to Gerard and his wife, and whether Vito could require a reconveyance. Additionally, the court had to consider factual disputes regarding the accounting for proceeds of rent and the liability of a co-owner to account for those proceeds.

Upon thorough consideration of the facts, the court concluded that the transaction between the plaintiffs and their brothers was a purchase of the 50% share as beneficial owners, not a mortgage. The court found that there were factual disputes concerning the later disposition and transfer by Vito to Gerard and his wife, but ultimately determined that Vito could not require a reconveyance of his interest. The court also addressed the issue of accounting for the proceeds of rent, finding that there were factual disputes that needed to be resolved in further proceedings. The court considered the principles of co-ownership and the obligation to account for rental income.

The court's final orders included a declaration that the transaction concerning the 50% interest was a purchase and not a mortgage, and that Vito could not require a reconveyance of his 25% interest. The court also directed that the factual disputes regarding the accounting for proceeds of rent be determined in further proceedings.

Orders