Pollicino v Pollicino

[2000] NSWCA 4

CITATION:	Pollicino v Pollicino [2000] NSWCA 4 revised - 02/05/2007
FILE NUMBER(S):	CA 40356/98; CA 40405/98; ED 3801/87
HEARING DATE(S):	03/02/2000 and 04/02/2000
JUDGMENT DATE:	22 March 2000
PARTIES :	Francesco Pollicino & 2 Ors v Salvatore Pollicino Salvatore Pollicino v Francesco Pollicino & 2 Ors
JUDGMENT OF:	Mason P at 1-5; Powell JA at 6-9; Foster AJA at 10-64

LOWER COURT JURISDICTION :	Supreme Court
LOWER COURT FILE NUMBER(S) :	3801/87 3801/87
LOWER COURT JUDICIAL OFFICER :	Windeyer J

COUNSEL:	D.L. Williams for the respondents G.J. McVay for the appellant
SOLICITORS:	Garrett, Walmsley, Madgwick for the respondents Sparke Helmore for the appellant
CATCHWORDS:	Discretionary trust - partnership relief sought differs from that sought before the trial judge - judgment under appeal interlocutory - fiduciary duty - declaration of trust in property - just allowances - trust property used as security for loans - beneficiaries' interests in later properties - breach of trust - ND.
LEGISLATION CITED:	Daniels Chancery Practice 5 Ed 1233
CASES CITED:	Scott v Scott (1963) 109 CLR 649 Hagan v Waterhouse [1983] 2 NSWLR 395 Giumelli v Giumelli 161 ALR 473 Cummings v Lewis (1993) 113 ALR 285 at 293 Derrawee Pastoral Company Pty Ltd v McConochie CA 24 February 1995 unreported. Kara Kar Holdings Pty Ltd v Brookton Holdings Pty Ltd CA 27 March 1997 unreported. Hall v The Nominal Defendant (1966) 117 CLR 423 Licul v Corney (1976) 50 ALJR 438 Port of Melbourne Authority v Anschun Pty Ltd (1980) 147 CLR 35 Carr v Finance Corporation of Australia Limited (No. 1) (1980-1981) 147 CLR 246 Sanofi v Parke Davis Pty Ltd (No. 1) (1982) 149 CLR 147 A Hudson Pty Ltd v Legal & General Life Australia Limited (1985) 1 NSWLR 701 Dousi v Colgate Palmolive Pty Ltd (1987) 9 NSWLR 374 Re Tillett (1886) LR 32 Ch. D. 639 Haverland v McCleary (1894) 15 NSWLR (Eq) 22
DECISION:	Appeal dismissed with costs.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40405/98
CA403565/98
ED 3801/87
MASON P
POWELL JA
FOSTER AJA
Wednesday, 22 March, 2000



SALVATORE POLLICINO v FRANCESCO POLLICINO & ORS

JUDGMENT

1    MASON P: I have read in draft form the judgments of Powell JA and Foster AJA.

2    I incline to the view that the 1997 judgment under appeal was interlocutory for the reasons given by Powell JA. But I find it unnecessary to resolve that issue, because I would in any event grant leave to appeal (both parties contending that the appeal was competent) and dismiss the appeal with costs.

3    Accordingly, I agree with the orders for dismissal of the appeal with costs proposed by Foster AJA.

4    The matter proceeded in 1997 on the basis that the 1993 judgment presented no obstacle to the Court, upon “further consideration”, doing what was just in the circumstances. For that reason, the correctness of the 1997 orders should be considered on their merits, in the light of the issues then fought, and without any constraint based upon…