Proietti v Proietti

Case [2023] NSWCA 76

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Proietti v Proietti [2023] NSWCA 76
Hearing dates: 18 April 2023
Decision date: 21 April 2023
Before: Ward P at [1]; Adamson JA at [2]
Decision:

(1)   Dismiss the amended notice of motion filed on 5 April 2023.

(2)   Order the applicant to pay the respondents’ costs of the notice of motion on an indemnity basis, such costs to be paid from the applicant’s share of the net proceeds of the sale of the property at Marsfield of which the applicant and Peter Proietti are tenants in common in equal shares.

Catchwords:

APPEALS — review of decision refusing stay pending determination of application for special leave to appeal to High Court — no reason for stay in light of special leave being refused — no utility in reviewing decision

APPEALS — application to set aside orders — where applicant resisted dismissal of appeal against orders for sale of real property under s 66G of the Conveyancing Act 1919 (NSW) — no right to challenge orders except by special leave application to High Court — Court of Appeal has no power to set aside its final orders which have been duly entered

DIRECTIONS — Teoh direction — whether applicant should be restricted from accessing Court in order to protect trustees’ expeditious sale of property and other beneficiary — direction not warranted

COSTS — special order for costs — whether other beneficiary should pay half of costs of unsuccessful litigation brought against trustees by applicant — trustee costs to be paid on indemnity basis by applicant from applicant’s share of proceeds of sale

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 63

Conveyancing Act 1919 (NSW), s 66G

Supreme Court Act 1970 (NSW), s 46

Uniform Civil Procedure Rules 2005 (NSW), r 36.16

Cases Cited:

Bailey v Marinoff (1971) 125 CLR 529; [1971] HCA 49

Choi v Secretary, Department of Justice and Communities [2022] NSWCA 170

DJL v The Central Authority (2000) 201 CLR 226; [2000] HCA 17

Perpetual Trustees Australia Ltd v Heperu Pty Ltd (No 2) (2009) 78 NSWLR 190; [2009] NSWCA 387

Proietti v Proietti [2022] NSWCA 234

Proietti v Proietti [2022] NSWCA 268

Proietti v Proietti [2022] NSWSC 875

Proietti v Proietti [2023] HCASL 15

Teoh v Hunters Hill Council (No 4) (2011) 81 NSWLR 771; [2011] NSWCA 324

Category:Principal judgment
Parties: Philip Proietti (Applicant)
Peter Proietti (First Respondent)
Ian Colwell Miller & Peter Joseph Dominello as Court Appointed Trustees (Second Respondent)
Representation:

Counsel:
Applicant (Self-represented)
No appearance (First Respondent)
J Eun (Second Respondent)

Solicitors:
Not applicable (Applicant)
Maatouks Law Group (First Respondent)
Hunt & Hunt (Second Respondent)
File Number(s): 2022/217751
 Decision under appeal 
Court or tribunal:
Court of Appeal
Citation:

Proietti v Proietti [2022] NSWCA 268

Proietti v Proietti [2022] NSWCA 234

Date of Decision:
14 December 2022
17 November 2022
Before:
Macfarlan JA
Mitchelmore JA; Basten AJA; Griffiths AJA
File Number(s):
2022/217751

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AGLC
Proietti v Proietti [2023] NSWCA 76
Case
[2023] NSWCA 76
Decision Date

CaseChat Overview and Summary

The applicant, Mr Proietti, sought to set aside orders made by the Court of Appeal concerning the sale of real property under section 66G of the *Conveyancing Act 1919* (NSW). The respondents were the trustees of the property and another beneficiary. The applicant had previously sought special leave to appeal to the High Court, which was refused. The Court of Appeal was therefore asked to review its own final orders, which had been duly entered.

The primary legal issues before the Court of Appeal were whether it had the power to set aside its own final, entered orders, and whether a stay of proceedings was warranted pending the determination of an application for special leave to appeal to the High Court. The Court also considered whether a *Teoh* direction, restricting the applicant's access to the court, was appropriate and whether a special order for costs should be made against the applicant.

Ward P and Adamson JA held that the Court of Appeal had no power to set aside its final orders once they had been duly entered. They further found that there was no utility in reviewing the decision to refuse a stay, given that special leave to appeal to the High Court had already been refused. The Court determined that a *Teoh* direction was not warranted, as it would not protect the trustees' expeditious sale of the property or the other beneficiary.

The Court ordered that the amended notice of motion filed by the applicant be dismissed. Furthermore, the applicant was ordered to pay the respondents’ costs of the notice of motion on an indemnity basis, with these costs to be satisfied from the applicant’s share of the net proceeds of the sale of the property.

Orders

Orders of the court

(1) Dismiss the amended notice of motion filed on 5 April 2023.

(2) Order the applicant to pay the respondents’ costs of the notice of motion on an indemnity basis, such costs to be paid from the applicant’s share of the net proceeds of the sale of the property at Marsfield of which the applicant and Peter Proietti are tenants in common in equal shares.

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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