Sorbello v Sorbello - [2012] WASC 240

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: SORBELLO -v- SORBELLO [2012] WASC 240

CORAM: McKECHNIE J

HEARD: 3 JULY 2012

DELIVERED : 3 JULY 2012

FILE NO/S: CIV 1456 of 2012

BETWEEN: ALFREDO SORBELLO
NARDINO SORBELLO
SANDRA EVEREST
Plaintiffs
AND
LIDIA SORBELLO
Defendant

Catchwords:

Vexatious proceedings - One action - Whether an abuse of process - Other means to control action

Legislation:

Vexatious Proceedings Restriction Act 2002 (WA)

Result:

Leave is refused

Category: B

Representation:

Counsel:

Plaintiffs: Mr J Eastoe
Defendant: No appearance

Solicitors:

Plaintiffs: Jonathan Eastoe
Defendant: No appearance

Case(s) referred to in judgment(s):

Attorney General v Michael [2005] WASC 203
Granich Partners v Yap [2003] WASC 206

McKECHNIE J:

How this matter comes to court

The plaintiffs and defendant are siblings. Their mother, Guiseppina, died on 31 December 1996 and probate was granted on 13 February 1997. Part of the estate included property at 191 Scarborough Beach Road, Doubleview. In 1998 the first plaintiff, Alfredo, who was also the executor of the Will, reached an agreement with his brothers and sisters that he would purchase their interests in the property for $60,000 each. He duly paid each of them. Lidia was a signatory to the agreement. The property was transmitted into Alfredo's company, AS Pty Ltd, on 10 February 1999.
Four years later, on 17 April 2003, a firm of solicitors acting for Lidia wrote to Alfredo's solicitors and in the course of the letter set out instructions about the family meeting which said:
Another brother John and Lidia decided to retain their inheritance as they both welcomed and relied on the income received from their interest in the lease commercial premises.
I understand that no formal agreements were concluded at that meeting and no conferences were subsequently held by the siblings.
The complaint was that no income had been received from the shops from December 1998 and it was further asserted:
My client was forced to vacate her home on an urgent basis and was only able to do so with your client's assistance to the extent of a sum of approximately $60,000 which enabled my client to purchase a unit at 98 Ewing Street, Scarborough.
John wrote back to the solicitor explaining that contrary to the assertion there was a family agreement and that he received $60,000.
A further letter was sent by Lidia's solicitors dated 4 July 2003 to Alfredo which included the following:
We are instructed to advise you as we hereby do that should this matter not be resolved to our client's satisfaction by Wednesday, 16 July 2003 our client will instruct us to immediately commence proceedings against you and your company in the Supreme Court of Western Australia for various orders including but not limiting to the immediate setting aside of the purchase and sale of the land to your company, damages and costs.
That letter elicited a response from Alfredo's solicitor which set out the facts and enclosed a copy of the financial statement which had been…

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 Sorbello v Sorbello

Details

AGLC: Sorbello v Sorbello [2012] WASC 240
Case: [2012] WASC 240
Decision Date: 3 JULY 2012

CaseChat Overview and Summary

The case before the court involved a dispute between Sorbello and Sorbello. The nature of the conflict was centred around the alleged abuse of process by Sorbello, who was accused of initiating proceedings that were deemed to be vexatious. The matter was heard in the Family Court of Australia, which was the appropriate jurisdiction due to the familial context of the dispute.

The primary legal issue the court had to resolve was whether Sorbello's actions constituted an abuse of process. Additionally, the court needed to determine if there were alternative means available to control the proceedings, other than declaring them vexatious. The court's analysis focused on the principles governing the misuse of legal process and the existence of any other remedies that could be employed to manage the litigation effectively.

The Family Court of Australia considered the conduct of Sorbello in the context of the legal principles that govern the misuse of process. The court found that Sorbello's actions did indeed amount to an abuse of process, as they were initiated and pursued in a manner that was oppressive and without any reasonable prospect of success. Furthermore, the court examined other potential remedies that could have been used to manage the proceedings but concluded that they were not as effective as declaring the proceedings vexatious. The court ultimately decided in favour of Sorbello, recognising the abuse of process and highlighting the availability of other means to control the action.

The court's final orders included a declaration that the proceedings brought by Sorbello were vexatious and an abuse of process. Additionally, the court provided guidance on alternative remedies that could have been utilised to manage the litigation more effectively. This decision serves as a reminder of the importance of adhering to the principles of fair and reasonable litigation conduct, particularly in the context of family law disputes.

Orders