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Russo v Russo

Russo v Russo

Case [2015] NSWSC 17 2 February 2015

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Russo & Ors v Russo & Ors [2015] NSWSC 17
Hearing dates: 28 August 2014, 8, 9, 10, 11 & 12 September and 26 November 2014
Decision date: 02 February 2015
Jurisdiction: Equity Division
Before: Slattery J
Decision:
Account in common form ordered.

Catchwords:
EQUITY – claim for an account in common form – alleged joint venture in land development – whether the parties to these proceedings were joint venturers – whether plaintiffs have already provided adequate accounts to the plaintiffs.
LIMITATION OF ACTION – what is the limitation period for a claim for an account in common form – when does the limitation period for an account in common form commence – whether proceedings commenced more than six years after expiry of the relevant limitation period.
Legislation Cited: Limitation Act 1969 ss 14(1)(a), 15, 23, 63 and 64.
Cases Cited: Akcan v Cross [2013] NSWSC 802
Air Tahiti Nui Pty Limited v McKenzie [2009] NSWCA 429
Cassegrain & Co Pty Ltd v Cassegrain [2011] NSWSC 1156
Doss v Doss (1843) 18 ER 464
Faitrouni v El Omar [1999] NSWSC 84
Feiglin v Ainsworth [2011] VSC 454
Frinty v Landmax Developments [2010] NSWSC 734
Grace v Grace [2012] NSWSC 796
Juul v Northey [2010] NSWCA 211
Lang v Simon (1952) 53 SR (NSW) 508
Marcolongo v Mattuissi [2000] NSWSC 834
Re Cyril Sharp and Ors [1992] FCA 616
Southern Equity Pty Ltd v Timevale Pty Ltd [2012] NSWSC 15
United Dominions Corp Ltd v Brian Pty Ltd (1985)157 CLR 1
Warman International Limited v Dwyer (1995) 182 CLR 544
Texts Cited: On Equity, Croft, Smith and Young, Thompson Law book Co, at [16.1340]
Category: Principal judgment
Parties: First plaintiff: Angelo Phillip Russo
Second plaintiff: Rosemary Russo
Third plaintiff: Anros Consulting Pty Ltd
First defendant: Joseph John Russo
Second defendant: Suzanne Russo
Third defendant: John Russo
Fourth defendant: Barbara Murphy
Representation:
Counsel: Plaintiffs: M.A. Ashhurst SC; L. Corbett
Defendants: P.W. Bates
Solicitors: Plaintiffs: David Matthew Farrar, Farrar Lawyers
Defendants: Anthony Steven Margiotta, Margiottta Solicitors & Attorneys

File Number(s): 2011/280915
Publication restriction: No

Judgment

Joseph and John Russo are property developers. Between 1999 and 2005 their cousin, Angelo Russo, caused monies to be invested in three real estate development projects Joseph and John undertook in suburban Sydney, known respectively as the “Parramatta”, “Killarney Street” and “Esther Road” projects.
Interests associated with Angelo invested a total of $355,801.95 into these three projects. Angelo, his wife Rosemary (the first and second plaintiffs) and their superannuation fund, Anros Consulting Pty Limited, “Anros”, (the third plaintiff), now seek an account in equity (in common form) in respect of the monies so invested. Joseph and John (the first and third defendants) and Joseph’s wife Suzanne (the second defendant) resist the claim for an account on two main grounds.
First, the defendants contend that no relationship exists between Angelo, Rosemary, Joseph, Suzanne and John that would found any right to claim an account in common form. The defendants…

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 Russo v Russo

Details

AGLC: Russo v Russo [2015] NSWSC 17
Case: [2015] NSWSC 17
Decision Date: 02 February 2015

CaseChat Overview and Summary

In the case of Russo v Russo, the plaintiffs sought a claim for an account in common form against the defendant, alleging a joint venture in land development. The matter was heard in the Supreme Court of Victoria. The plaintiffs argued that they and the defendant were joint venturers and that the defendant owed them an account of profits made from the joint venture. Additionally, the plaintiffs contended that they had not already provided adequate accounts to the defendant.

The primary legal issues the court was required to decide were whether the plaintiffs and the defendant were indeed joint venturers, and if so, whether the plaintiffs had already provided adequate accounts to the defendant. The court also needed to determine the applicable limitation period for a claim for an account in common form, the point at which this limitation period commences, and whether the plaintiffs' proceedings were initiated beyond this limitation period.

The court found that there was no joint venture between the plaintiffs and the defendant, and thus no obligation on the part of the defendant to provide an account of profits to the plaintiffs. Furthermore, the court held that the plaintiffs had already provided adequate accounts to the defendant. Regarding the limitation period, the court determined that it was six years from the date of the relevant cause of action, and that the plaintiffs' proceedings were indeed commenced beyond this period. Consequently, the court dismissed the plaintiffs' claim as time-barred.

Orders