Trani v Trani - [2019] VSC 2

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

S ECI 2018 01356

MARCO TRANI & ANOR (according to the attached schedule)	Plaintiff
v
PATRIZI TRANI & ORS (according to the attached schedule)	Defendant

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JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	20 December 2018
DATE OF JUDGMENT:	17 January 2019
CASE MAY BE CITED AS:	Trani & Anor v Trani & Ors
MEDIUM NEUTRAL CITATION:	[2019] VSC 2

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PRACTICE AND PROCEDURE – Application to set aside judgment obtained in default of defence – Whether judgment entered regularly – Whether proceeding an application in respect of co-owned property under Part IV of the Property Law Act 1958 (Vic) (‘partition proceeding’) – Proceeding not a partition proceeding – No defence on the merits advanced –Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Panna QC	Robert James Lawyers
For the First and Second Defendant	Mr J Levine	The Law Professionals
For the Third Defendant	No appearance

HER HONOUR:

The plaintiffs in this proceeding, Marco and Luciano Trani, are brothers. The first defendant, Patrizia Trani, is their estranged sister. The second defendant, Ascended Mastery Pty Ltd, is a company controlled by Patrizia. The third defendant, Michelle Farfoud, is a conveyancer who was engaged by Patrizia to sell the family beach house at 331 Dromana Parade, Safety Beach (“Safety Beach property”). Until July 2018, Marco, Luciano and Patrizia owned the Safety Beach property as tenants in common in equal shares.

On 17 September 2018, Marco and Luciano issued this proceeding, alleging that, in summary, Patrizia had sold the Safety Beach property to a third party, without their knowledge or consent, and had forged their signatures on the transfer of land documents lodged with the Registrar of Titles. Marco and Luciano alleged that the second defendant was liable as a knowing recipient of the proceeds of sale of the Safety Beach property, and the third defendant was liable for misrepresentations said to have been made by her to the Registrar of Titles that she was authorised to execute the transfer of land documents on behalf of Marco and Luciano.

This is not the first proceeding involving Marco, Luciano, and Patrizia. In 2013, Latina Investments Pty Ltd (“Latina”), as the trustee of the Trani Family Trust, which was controlled by Marco and Luciano at the time, brought proceedings in this Court seeking the withdrawal of caveats lodged by Patrizia over a number of properties owned by Latina. In 2015, Patrizia brought a proceeding in this Court alleging that, among other things, that Marco and Luciano had acted in breach of trust by winding up the Trani family trust in June 2014 and distributing the assets of the trust to themselves to the exclusion of Patrizia (“trust proceeding”). Patrizia was substantially successful in the trust proceeding, with final orders being made in her favour in October 2018.

Returning to the current proceeding, on 17 September 2018, McDonald J made freezing orders over the assets…

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 Trani v Trani

Details

AGLC: Trani v Trani [2019] VSC 2
Case: [2019] VSC 2
Decision Date: 17 January 2019

CaseChat Overview and Summary

Trani v Trani involved an application by the respondent to set aside a default judgment against her. The parties were co-owners of a property, and the dispute centred on the validity of a judgment obtained by the applicant against the respondent in default of defence. The matter was heard in the Supreme Court of Victoria.

The court was required to determine whether the judgment had been entered regularly and whether the proceeding was an application in respect of co-owned property under Part IV of the Property Law Act 1958 (Vic), which would classify it as a partition proceeding. Additionally, the court needed to consider if there was any defence on the merits presented by the respondent.

The court found that the judgment had been entered regularly, and the proceeding was not a partition proceeding as defined by the statute. Furthermore, the respondent did not provide a defence on the merits. Consequently, the court dismissed the application to set aside the judgment. The respondent was ordered to pay the applicant's costs of the application.

Orders