Pizzino v Caratti

FEDERAL COURT OF AUSTRALIA

Pizzino v Caratti [2023] FCA 1624

File number:

WAD 230 of 2023

Judgment of:

COLVIN J

Date of judgment:

18 December 2023

Catchwords:

PRACTICE AND PROCEDURE - application to strike out statement of claim - where not possible to ascertain causes of action with clarity - where claim of fraud and knowing participation in breach of trust not supported by material facts - where relief sought against non-parties - where respondent alleged application is out of time, is an abuse of process or is scandalous - where respondent did not seek order dismissing proceedings - statement of claim struck out - ordered applicants have liberty to replead - ordered statement of claim to be removed from court file

Cases cited:

Betfair Pty Limited v Racing New South Wales [2010] FCAFC 133; (2010) 189 FCR 356

Oztech Pty Ltd v Public Trustee of Queensland [2019] FCAFC 102; (2019) 269 FCR 349

Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514

Division:

General Division

Registry:

Western Australia

National Practice Area:

Commercial and Corporations

Sub-area:

Commercial Contracts, Banking, Finance and Insurance

Number of paragraphs:

29

Date of hearing:

18 December 2023

Counsel for the Applicants:

Mr BW Duckham

Solicitor for the Applicants:

Duckham & Co

Counsel for the Respondent:

Mr CG Mofflin

Solicitor for the Respondent:

Alan Rumsley - Commercial Lawyer

ORDERS

WAD 230 of 2023

BETWEEN:

ALBERTO PIZZINO

First Applicant

MARIA MCKENNA

Second Applicant

ROSA TRICOLI

Third Applicant

GINA TRAVAGLINI

Fourth Applicant

AND:

ALLEN BRUCE CARATTI

Respondent

ORDER MADE BY:	COLVIN J
DATE OF ORDER:	18 DECEMBER 2023

THE COURT ORDERS THAT:

1.The statement of claim be struck out.

2.The statement of claim be removed from the court file.

3.The question whether orders should be made in terms of the minute of orders filed by the applicant on 23 November 2023 be adjourned until the next case management hearing.

4.The applicants do file and serve a substitute statement of claim on or before 16 February 2024.

5.The question whether any order should be made as to costs of service of the proceedings be determined at the next case management hearing.

6.The applicants pay the respondent's costs of the application to strike out the statement of claim in any event.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

COLVIN J:

1. Mr Alberto Pizzino, Ms Maria McKenna, Ms Rosa Tricoli and Ms Gina Travaglini (Former Owners) claim that they were formerly the registered proprietors of a property in Perth.  It is referred to as Lot 76.  They say that in 2005 they granted an exclusive option to purchase part of Lot 76 to West Swan Land Corporation Pty Ltd (WSLC) as trustee of the West Swan Land Trust (Trust).  For present purposes it is sufficient to observe that they claim that under the terms of the option they transferred the whole of Lot 76 to WSLC on…