Sorbello v Sorbello

[2005] QSC 219

SUPREME COURT OF QUEENSLAND

CITATION:

Sorbello & Ors v Sorbello & Anor [2005] QSC 219

PARTIES:

GINA SHEZ MARIA SORBELLO
JAI DESMOND SORBELLO
ANDRE GIOVANI SORBELLO
(by his litigation guardian BERYL EMILY ANDERSON)
(plaintiffs)
v
JOHN SORBELLO
(first defendant)
CROWN IMPORTS INTERNATIONAL PTY LTD
ACN 070 946 799

(second defendant)

FILE NO/S:

BS4483 of 2003

DIVISION:

Trial Division

PROCEEDING:

Trial

DELIVERED ON:

12 August 2005

DELIVERED AT:

Brisbane

HEARING DATE:

30-31 March and 1 April 2005

JUDGE:

Mullins J

ORDER:

The proceeding is dismissed

CATCHWORDS:

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – OFFER AND ACCEPTANCE – MATTERS NOT GIVING RISE TO BINDING CONTRACT – AGREEMENTS NOT INTENDED TO CREATE LEGAL RELATIONS – where wife diagnosed with terminal illness – where discussions took place between wife and husband concerning how wife’s life insurance payout would be used to benefit their children – where husband was nominated beneficiary under the policy – where after wife’s death dispute between wife’s mother and husband as to whether wife’s conversations with husband evidenced an intention by the husband and wife to create legal relations – whether these conversations constituted a contract for the benefit of the plaintiffs within the terms of s 55 Property Law Act 1974 (Qld)

Property Law Act 1974

Balfour v Balfour [1919] 2 KB 571
Ermogenous v Greek Orthodox Community of SA Inc (2000) 209 CLR 95
Jones v Padavatton [1969] 1 WLR 328
Nominal Defendant v Clements (1960) 104 CLR 476
Riches v Hogben [1986] 1 Qd R 315
Todd v Nicol [1957] SASR 72

COUNSEL:

N J Thompson for the plaintiffs

A P J Collins for the defendants

SOLICITORS:

Gray’s Professional Services Group for the plaintiffs

Fitz-Walter Lawyers for the defendants

1. MULLINS J: The plaintiffs are the children of the first defendant and his late wife Mrs Debbie Sorbello (“Mrs Sorbello”).  The second defendant is a company associated with the first defendant.  The plaintiff Gina Sorbello (“Gina”) was born in November 1980.  The plaintiff Jai Sorbello (“Jai”) was born in March 1983.  The plaintiff Andre Sorbello (“Andre”) who was born in June 1994 sues by his litigation guardian, Mrs Beryl Anderson, who is the mother of Mrs Sorbello and the grandmother of the plaintiffs.  Mrs Sorbello was diagnosed with cervical cancer in January 1995 and passed away on 17 November 1995.

1. The plaintiffs allege that in or about February 1995 the deceased and the first defendant made an agreement (“the alleged agreement”) which is pleaded in paragraph 4 of the statement of claim as follows:

“a.         The First Defendant promised that the insurance policy nominated to be payable to the First Defendant were to be held and or received by him in the sum of $50,000.00 for his own benefit and in the sum of $100,000.00 for the benefit of their children, GINA SHEZ MARIA SORBELLO JAI DESMOND SORBELLO and ANDRE GIOVANI SORBELLO;
b.          The First Defendant promised that the Deceased’s equity (or equitable share had their joint tenancy in their matrimonial home at 27 Pintail Crescent, Burleigh Waters aforesaid…