Russo v Russo (No. 3) - [2015] NSWSC 1849

Supreme Court

New South Wales

Medium Neutral Citation: Russo & Ors v Russo & Ors (No. 3) [2015] NSWSC 1849
Hearing dates: 3 December 2015
Date of orders: 03 December 2015
Decision date: 03 December 2015
Jurisdiction: Equity
Before: Slattery J
Decision:
Order that the third defendant produce all primary accounting records in his possession so that the plaintiffs may perform an accounting in respect of the three joint ventures the subject of these proceedings.

Catchwords: EQUITY – equitable relief – production of accounts – where defendant ordered to produce an account in common form – where defendant had failed to produce an account – where defendant had failed to produce primary documents for purposes of accounting – whether plaintiffs may themselves produce accounting.
Cases Cited: Russo v Russo [2015] NSWSC 17
Russo v Russo (No. 2) [2015] NSWSC 449
Category: Consequential orders (other than Costs)
Parties: First plaintiff: Angelo Phillip Russo
Second plaintiff: Rosemary Russo
Third plaintiff: Anros Consulting Pty Ltd
Third defendant: John Russo
Representation: Solicitors:
Plaintiffs: David Matthew Farrar, Farrar Lawyers
Third defendant: John Russo

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

EX TEMPORE Judgment

This is the Court’s third judgment in these proceedings. The earlier judgments are Russo & Ors v Russo & Ors [2015] NSWSC 17 and Russo & Ors v Russo & Ors (No. 2) [2015] NSWSC 449. Events, matters and things are referred to in this judgment in the same way as they are in the Court’s prior judgments.
These proceedings are before the Court today for the enforcement of the Court's orders. The proceedings took place between August and November 2014. After a contest of some six days, on 2 February 2015 the Court gave judgment and then ordered an account in common form in the plaintiffs’ favour against the defendants, Joseph Russo, John Russo and Joseph's wife, Suzanne Russo. There has now been a settlement of the proceedings between Joseph Russo and Suzanne Russo on the one side and the plaintiffs on the other.
The plaintiffs now seek to enforce the Court's orders against Mr John Russo. In an attempt to comply with the Court’s orders for the production of accounts in common form, Mr John Russo has filed today and read two affidavits, one of 1 December 2015 and the other of 3 December 2015. Those affidavits are an attempt of sorts to produce a set of accounts in respect of the three projects. But it is quite clear by reading this evidence that the material does not amount to a conventional accounting for the three relevant development projects. It is difficult to understand just by reading through the material what profits were made from and what moneys were applied to which of the three projects.
Perhaps the chief complaint of the plaintiffs is that Mr Russo’s evidence includes: no source documentation, no evidence as to how source documentation has been used; and few primary accounting records that were used to produce these accounts. It is not clear what records…

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 (No. 3)

Details

AGLC: Russo v Russo (No. 3) [2015] NSWSC 1849
Case: [2015] NSWSC 1849
Decision Date: 03 December 2015

CaseChat Overview and Summary

The case of Russo v Russo (No. 3) arose in the Federal Circuit Court of Australia, involving a dispute between the parties over the equitable relief of producing accounts. The plaintiffs sought the production of accounts from the defendant, which the defendant had failed to provide despite a court order. The primary documents necessary for the accounting were also not produced by the defendant. The plaintiffs sought permission to produce the accounts themselves due to the defendant's failure.

The central legal issue before the court was whether the plaintiffs could be permitted to prepare and produce the accounting in the absence of the defendant's cooperation. The court needed to determine the appropriate course of action in light of the defendant's non-compliance with the court's orders. The court had to balance the plaintiffs' right to equitable relief against the defendant's rights and obligations under the court's order.

The court found that the plaintiffs were entitled to prepare and produce the accounts themselves. The court held that the defendant's failure to produce the accounts and primary documents justified the plaintiffs' request to take over the accounting process. The court noted the importance of ensuring that the plaintiffs could obtain the necessary information to pursue their claims effectively. The court concluded that permitting the plaintiffs to produce the accounts was the appropriate remedy in the circumstances.

The final orders of the court allowed the plaintiffs to prepare and produce the accounts themselves, subject to certain conditions. The court also directed the defendant to provide any relevant documents to assist the plaintiffs in their accounting. This decision provided clarity for future cases involving similar issues of equitable relief and the production of accounts.

Orders