Tassinari and Pesalaccio (No 2) - [2018] FamCA 506

FAMILY COURT OF AUSTRALIA

TASSINARI & PESALACCIO (NO 2)

[2018] FamCA 506

FAMILY LAW – PRACTICE AND PROCEDURE – Application for summary dismissal – Where the husband’s mother, brother and various business entities in which they are involved are respondents to the proceedings – Where the wife alleges that the husband is involved in these business entities and that they are his puppets or alter egos – Where the respondents seek that the case against them be summarily dismissed – Consideration of the available evidence and principles of summary dismissal from legislation and case law – Where the wife’s evidence is limited – Where the respondent companies form part of a somewhat complex structure of family companies and the husband appears to occupy a prominent position – Where the Court is of the view that there is a real question to be tried – Where the application for summary dismissal is dismissed.

Family Law Act 1975 (Cth) ss 4(1), 118(1)
Family Law Rules 2004 (Cth) rr 10.12, 10.14

Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337
Bigg v Suzi (1998) FLC 92‑799
Bretton & Bondai [2013] FamCAFC 168
Ebner & Pappas [2014] FamCAFC 229
Friar & Friar [2011] FamCAFC 71
General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125
Gitane & Velacruz (2007) FLC 93‑309
Lindon v Commonwealth (No 2) (1996) 136 ALR 251
Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158
Sarai & Talwar (2018) FamCAFC 22
Spencer v Commonwealth of Australia (2010) 241 CLR 118

APPLICANT:

Ms Tassinari

FIRST RESPONDENT:

Mr Pesalaccio

SECOND RESPONDENT:

Ms Pesalaccio

THIRD RESPONDENT:

B Pty Ltd CAN…

FOURTH RESPONDENT:

C Pty Ltd ACN …

FIFTH RESPONDENT:

D Pty Ltd ACN …

SIXTH RESPONDENT:	E Pty Ltd ACN …
SEVENTH RESPONDENT:	Mr F Pesalaccio

FILE NUMBER:

SYC

3880

2012

DATE DELIVERED:

18 June 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Johnston J

HEARING DATE:

19 January 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Lethbridge SC

SOLICITOR FOR THE APPLICANT:

Slatt Family Lawyers

COUNSEL FOR THE FIRST RESPONDENT:

Dr Watson

SOLICITOR FOR THE FIRST RESPONDENT:

Pearson Emerson Meyer Family Lawyers

COUNSEL FOR THE SECOND TO SEVENTH RESPONDENTS:

Mr McInerney SC

SOLICITOR FOR THE SECOND TO SEVENTH RESPONDENTS:

McGrath Dicembre & Company

Orders

That the applications at paragraphs 3 and 4 of the Amended Response to an Application in a Case filed by the second to seventh respondents on 5 December 2016 be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tassinari & Pesalaccio and Ors (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to…

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.

Keep reading for free

Create a free CaseChat account to read Tassinari and Pesalaccio (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] FamCA 506
Decision Date: 18 June 2018

CaseChat Overview and Summary

The applicants, Tassinari and Pesalaccio, brought proceedings against the respondents. The dispute concerned applications made by the second to seventh respondents within an existing case. The decision was made by Johnston J in the Supreme Court of Western Australia.

The primary legal issue before the court was whether to dismiss the applications filed by the second to seventh respondents on 5 December 2016. These applications were contained within their Amended Response to an Application in a Case.

Johnston J dismissed the applications. The reasons for this dismissal are not detailed in the provided text, but the outcome was a clear rejection of the respondents' interlocutory applications.

Orders

Orders of the court

That the applications at paragraphs 3 and 4 of the Amended Response to an Application in a Case filed by the second to seventh respondents on 5 December 2016 be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.