Taranto, S.L. v Moreslee P/L

[1993] FCA 270

IN THE FEDERAL COURT OF AUSTRALIA	)
)
NEW SOUTH WALES DISTRICT REGISTRY )	No. NG 3147 of 1992

)

GENERAL DIVISION 1

BETWEEN:  SALVATORE LUIGI TARANTO

Applicant

AND :  MORESLEE PTY LIMITED

First Respondent

ANTHONY TARANTO

Second Respondent

JOSEPH TARANTO

Third Respondent

TRESKONE PTY LIMITED

Fourth Respondent

ADAM TARANTO

Fifth Respondent

ROBIN TARANTO

Sixth Respondent

JUDGE MAKING ORDERS:	FOSTER J
DATE :	26 FEBRUARY 93
PLACE :	SYDNEY

MINUTE OF ORDERS

Note:	Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.

THE COURT ORDER THAT:

1.    The applicant give further and better discovery of all documents relating to his acquisition and ownership of units in the Park Regis complex acquired in the period 1984 to 1989;

2.   The applicant pay the costs of the second respondent in relation to this motion;

3.   Leave be granted to place the matter in the next long matters callover list;

4.    Liberty be granted to all parties to apply on two days' notice.

IN THE FEDERAL COURT OF AUSTRALIA	)
I
NEW SOUTH WALES DISTRICT REGISTRY j	NO. NG 3147 of 1992
GENERAL DIVISION

BETWEEN :  SALVATORE LUIGI TARANTO

Applicant

AND :  MORESLEE PTY LIMITED

First Respondent

ANTHONY TARANTO

Second Respondent

JOSEPH TARANTO

Third Respondent

TRESKONE PTY LIMITED

Fourth Respondent

ADAM TARANTO

Fifth Respondent

ROBIN TARANTO

Sixth Respondent

CORAH:	FOSTER J
DATE :	26 FEBRUARY 93
PLACE :	SYDNEY

ReASONS FOR JUDGUENT

(Extempore)

HIS HONOUR: This is an application for particular discovery. It arises, obviously, from the results of previous discovery and of correspondence which has passed between the parties. Originally a large number of items were said to be the subject of particular discovery. I have been advised, however, that the parties have limited this application to one topic only as they have been able to reach agreement in respect of all other matters.

The case involves a claim on the part of the applicant that there existed trust agreements between himself and the second respondent and others which involved assets being brought within the scope of the agreements constituted by the trusts. The parties, so far as they are natural persons, are brothers, so that this litigation takes on, to some extent, the character of a family dispute. I have been assisted by counsel who have shortly and succinctly set out the argument that exists between them as to the discoverable nature of the items to which I shall make reference. It appears that there were two agreements alleged giving rlse to trust obligations, one in 1955 and one in 1984.

It is alleged on the part of the applicant, that the terms of the 1984 agreement involved the bringing into the trust of assets acquired after that date by the activities of members of the family, provided that those activities were of a certain character.

The existence of the 1984 agreement and of its terms is in fact denled by the second respondent but it would seem clearly enough that if that agreement and its terms are established then he has an interest as a litigant in ascertaining what assets could fall within it. The relevant term is set out in the letter of 22 February 1993 from the second respondent's solicitors to the applicant's solicitors. It is stated that the agreement is to apply to:

"all assets acquired by the partners jointly or individually with money expertise or knowledge acquired in the course of assisting in the running of any of Moreslee's business or interests."

It is also said to have extended the scope of the alleged first agreement in that:

"all business knowledge acquired through working for Moreslee's business interests [would be used] for the purpose only of furthering those interests."

It appears that in the period 1984 to 1989 the applicant acquired certain units in the Park Regis complex. There is an issue between the parties as to whether these units could fall within the scope of the trust agreement of 1984, if its existence be established and if it be subject also to the terms to which I have referred.

The claim is made on behalf of the second respondent
that documents relating to the acquisition and ownership of

the units by the applicant should be discovered as being

documents that may well touch and concern this aspect of the

case. It is submitted on behalf of the applicant that it is

not sufficiently demonstrated that they would be documents falling into that category of documents which, in accordance with principle, might indicate an appropriate train of inquiry.

Counsel have put their submissions, as I have said, very succinctly. I have come to the conclusion that on the reading of the material to which I have referred in the light of the submissions that have been put to me, a case has been made out for these documents being the subject of particular discovery and I propose to make an order to that effect.

I will simply order that the applicant make further and better discovery of all documents relating to his acquisition of units in the Park Regis complex between the period 1984 to 1989. I also order that documents relating to the ownership of the units be similarly discovered.

It seems to me there was a deflnite dispute and it has been resolved. I think it is proper that the applicant in the proceedings pay the costs of the second respondent in relation to this motion.

I give the parties leave to place the matter in the
next long matters callover list but as there is this

outstanding question of discovery I grant liberty to all

parties to apply on two days notice.

I certify that this and the preceding

three (3) pages are a true copy of the reasons for judgment herein of the Honourable Mr Justice M. L. Foster.

Associate:

Date:  26 FEBRUARY 1993

A P P E A R A N C E S

COUNSEL FOR THE APPLICANT:	MR A. WOODS (Solicitor)
INSTRUCTED BY:	HENRY DAVIS YORK

COUNSEL FOR THE SECOND, FOURTH FIFTH AND SIXTH RESPONDENTS:

MS L. ANDERSON (Solicitor)

INSTRUCTED BY:  MINTER ELLISON MORRIS FLETCHER

COUNSEL FOR THE THIRD RESPONDENT: MR J. DUNCAN

INSTRUCTED BY:	THURLOW FISHER
DATE OF HEARING:	26 FEBRUARY 1993

DATE OF JUDGMENT:  26 FEBRUARY 1993