Permanent Custodians Limited v Nobilo - [2012] NSWSC 39

Supreme Court

New South Wales

Medium Neutral Citation: Permanent Custodians Limited v Nobilo and Others [2012] NSWSC 39
Hearing dates: 12 December 2011
Decision date: 08 February 2012
Jurisdiction: Common Law
Before: Johnson J
Decision:
1. The Notice of Motion filed 1 August 2011 is dismissed.
2. The Applicants are ordered to pay the Respondents' costs of the Motion.

Catchwords: PRACTICE AND PROCEDURE - application to withdraw admission in pleadings - whether admission wrongly or inadvertently made - necessity for evidence that admission wrongly or inadvertently made - absence of evidence from party (a solicitor) who verified pleadings as to actual facts and circumstances in which pleading containing admission twice verified by him - leave refused
Legislation Cited: Evidence Act 1995
Civil Procedure Act 2005
Cases Cited: Permanent Custodians Limited v Nobilo [2011] NSWSC 1494
Drabsch v Switzerland General Insurance Co Limited (Santow J, 16 October 1996, unreported)
NM Rural Enterprises Pty Limited v Rimanui Farms Limited [2010] NSWSC 969
For The Good Times Pty Limited v Coltern Pty Limited [2007] NSWSC 108
SLE Worldwide Australia Pty Limited v Wyatt Gallagher Bassett Pty Limited [2005] NSWSC 816
Australia and New Zealand Banking Group Limited v Bechely-Crundall (Sperling J, 11 June 1996, unreported)
Stafford v Kekatos (No. 2) [2008] NSWSC 1044
Texts Cited: ---
Category: Procedural and other rulings
Parties: Permanent Custodians Limited (Plaintiff)
Vincent Parisi and Anthony Pascale (Applicants)
John Nobilo (First Defendant/Respondent)
Jakica Nobilo (Second Defendant/Respondent)
Judy Saad (Third Defendant)
Representation: Mr C Colquhoun (Applicants)
Ms M Avenell (Respondents)
Galilee Solicitors (Plaintiff)
Sparke Helmore (Applicants)
SBA Lawyers (First and Second Defendants/Respondents)

File Number(s): 2009/297346
Publication restriction: ---

JUDGMENT

JOHNSON J : By Notice of Motion filed 1 August 2011, the Applicants, Vincent Parisi and Anthony Pascale, seek leave to withdraw an admission made in the Defence to the Second Cross-Claim filed on 21 June 2010. The application extends as well to the withdrawal of the same admission which was included in the Amended Defence to the Second Cross-Claim filed in December 2010.

The application is opposed by the Respondents, John and Jakica Nobilo.

The Nature of the Proceedings

On 17 December 2009, the Plaintiff, Permanent Custodians Limited, commenced proceedings against the Defendants, John and Jakica Nobilo, and their daughter Judy Saad, seeking judgment against the Defendants in a monetary sum and judgment for possession of land at Glenwood arising from alleged mortgage default.

On 27 March 2010, Mr and Mrs Nobilo filed a Defence to those proceedings. They also issued two Cross-Claims, one against the Plaintiff and the other (on 28 April 2010) against the Applicants, Mr Parisi and Mr Pascale, who are both solicitors and the principals of the law firm known as Hunter Lawyers.

The Defence and Cross-Claim filed by Mr and Mrs Nobilo allege that the loan was made to Ms Saad to enable her to refinance an existing loan. In effect, Mr and Mrs Nobilo were said to be guarantors and to have provided their property as security although, in the first instance, it was…

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 Permanent Custodians Limited v Nobilo

Details

AGLC: Permanent Custodians Limited v Nobilo [2012] NSWSC 39
Case: [2012] NSWSC 39
Decision Date: 08 February 2012

CaseChat Overview and Summary

The matter of Permanent Custodians Limited versus Nobilo was heard in the Supreme Court of Victoria. Permanent Custodians Limited, the plaintiff, sought to set aside an admission made in pleadings by Nobilo, the defendant, in the context of a dispute over a loan agreement. The plaintiff argued that the admission was made inadvertently and sought leave to withdraw the admission. The defendant opposed the application, asserting that the plaintiff had not provided sufficient evidence to substantiate the claim that the admission was inadvertent.

The court was tasked with determining whether an admission in pleadings could be withdrawn based on an allegation that it was made inadvertently, and if so, what standard of proof was required to establish such an allegation. The court also considered the necessity of evidence from the party who verified the pleadings to substantiate the claim of inadvertent admission. The plaintiff, represented by a solicitor, had verified the pleadings twice but did not provide evidence from the solicitor to support the claim that the admission was inadvertent.

The court found that the plaintiff had not met the required standard of proof to set aside the admission. The court held that the party who verified the pleadings must provide evidence as to the actual facts and circumstances in which the pleading containing the admission was verified. In this case, the plaintiff had failed to provide such evidence from the solicitor. Consequently, the court refused the plaintiff's application to withdraw the admission.

Orders