Proietti v Proietti (No 3)

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Proietti v Proietti (No 3) [2023] NSWCA 199

Hearing dates:

On the papers

Decision date:

29 August 2023

Before:

Leeming JA

Decision:

Notice of motion dated 24 July 2023 dismissed.

Catchwords:

PROCEDURE – Teoh order – whether further application to set aside orders made appointing trustees for sale vexatious or an abuse of process – motion dismissed

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 63

Supreme Court Act 1970 (NSW), s 46

Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 36.16

Cases Cited:

D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12

Proietti v Proietti [2022] NSWCA 234

Proietti v Proietti [2022] NSWCA 268

Proietti v Proietti [2023] NSWCA 76

Proietti v Proietti [2023] NSWCA 132

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

Category:

Procedural rulings

Parties:

Philip Proietti (Applicant)
Peter Proietti (First Respondent)
Ian Colwell Miller & Peter Joseph Dominello as Court Appointed Trustees (Second Respondent)

Representation:

Applicant in person

File Number(s):

2022/217751

Publication restriction:

Nil

Judgment

1. LEEMING JA: Mr Philip Proietti and his brother Mr Peter Proietti are in dispute. They are registered owners as tenants in common in equal shares of property at Marsfield, which they inherited from their mother. Until relatively recently, Mr Philip Proietti has lived in the property. In January 2022, Mr Peter Proietti applied for trustees to be appointed to sell the property. Those orders were made on 7 July 2022 by the Equity Division of the Court constituted by Kunc J. According to Mr Philip Proietti, the property has been sold and settlement is to occur next month.

2. In the litigation I shall shortly describe, the applicant Mr Philip Proietti has invariably been the moving party, and I shall refer to him simply as Mr Proietti. Mr Proietti’s appeal from the order made on 7 July 2022 was dismissed by the Court of Appeal constituted by Mitchelmore JA, Basten and Griffiths AJJA on 14 October 2022: Proietti v Proietti [2022] NSWCA 234. A stay pending special leave was dismissed by the Court of Appeal constituted by Macfarlan JA on 1 December 2022: Proietti v Proietti [2022] NSWCA 268. On 9 March 2023, the High Court dismissed Mr Proietti’s application for special leave, saying that “[t]he decision of the Court of Appeal is plainly correct”: Proietti v Proietti [2023] HCASL 15. It is thereby established, conclusively, that the trustees appointed by order of the Supreme Court are entitled to sell the Marsfield property owned by the brothers.

3. An unsuccessful appeal, and an unsuccessful application for special leave, have not prevented Mr Proietti from bringing proceedings to set aside the order made on 7 July 2022. Far from it.

4. On 10 March 2023, the Supreme Court granted leave for a writ of possession to be issued in respect of the property. Mr Proietti thereafter sought a stay of the writ of possession, and the setting aside…