Vella v Mineo - [2006] NSWSC 233

CITATION: VELLA v. MINEO [2006] NSWSC 233

HEARING DATE(S): Thursday 2 June 2005; Friday 3 June 2005; Monday 20 February 2006

JUDGMENT DATE :
4 April 2006

JURISDICTION: Equity

JUDGMENT OF: Hall J at 1

DECISION: See paragraph 20

CATCHWORDS: Costs on summons and statement of claim where plaintiff failed to establish constructive or resulting trust - awarded 50% to the defendant/cross-claimant who failed to establish financial contributions alleged by her - costs of cross-claim under Property Relationships Act - awarded 80% to defendant/cross-claimant on the basis of substantive but not complete success.

LEGISLATION CITED: Property Relationships Act 1984
Uniform Civil Procedure Rules 2005

CASES CITED: Fexuto Pty. Limited v. Bosnjak Holdings Pty. Limited (No. 3) (1998) ACSR 20
Rosniak v. GIO (1997) 41 NSWLR 608
NRMA Limited v. Morgan [1999] NSWSC 768

PARTIES: VELLA, Caterina Gabrielle, as Tutor for LEONARDI, Rosario
v. MINEO, Lucia

FILE NUMBER(S): SC No. 2700 of 2003

COUNSEL: P: M. Gilmour
D: J. Stoljar/W. Dawson

SOLICITORS: P: L.P. Alidenes & Co.
D: Browns, The Family Lawyers

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HALL, J.

TUESDAY 4 APRIL 2006

No. 2700 of 2003

CATERINA GABRIELLE VELLA, as Tutor for ROSARIO LEONARDI v. LUCIA MINEO

JUDGMENT
(On application for costs)

1 HIS HONOUR: Judgment was delivered on 25 November 2005. Pursuant to paragraph [188], the parties made written and oral submissions in relation to the form of orders to give effect to those proposed in the judgment, in particular, in relation to the cross-claim made pursuant to the Property Relationships Act 1984.

2 Both the written submissions on behalf of the plaintiff dated 17 December 2006 and those on behalf of the defendant/cross-claimant dated 17 February 2006 addressed the question of the form of orders and attached proposed orders for consideration. On 20 February 2006 in oral submissions, the parties were granted time in which to consider whether or not agreement could be reached on the form orders, other than those as to costs.

3 In an email dated 22 February 2006 addressed to my associate, Mr. Stoljar of counsel advised that the defendant/cross-claimant would consent to orders substantially in terms of orders 1 to 11 and order 15 in the proposed form or orders drafted by Ms. Gilmour of counsel, subject, (a) to specified amendments thereto to be made by consent to proposed orders 6(ii), 6(iii) and 6(iv) and, (b) certain other additions as proposed on behalf of the defendant/cross-claimant.

4 In relation to the orders referred to in [3] above set out below (at [20]), I note:-

(a) The period specified in order 6(i) is seven days.

(b) The three month period on order 6(ii) is 4 July 2006.

(c) The defendant is required to pay the amount of $10,000 in accordance with order 6(vi) within 14 days.

Costs

5 On behalf of the plaintiff, Ms. Gilmour submitted that the plaintiff had no alternative other than to commence the proceedings, given the defendant’s failure to respond in any meaningful…

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 Vella v Mineo

Details

AGLC: Vella v Mineo [2006] NSWSC 233
Case: [2006] NSWSC 233
Decision Date: 4 April 2006

CaseChat Overview and Summary

The case of Vella v Mineo involved a dispute between the plaintiff, Vella, and the defendant, Mineo, over the establishment of a constructive or resulting trust. The matter was heard in the Supreme Court of New South Wales. Vella sought to establish a trust over certain property, alleging that Mineo had made financial contributions to the property which should be recognised through the establishment of such a trust. Mineo, in turn, filed a cross-claim seeking recognition of her financial contributions and a declaration of her beneficial interest in the property.

The primary legal issue before the court was whether a constructive or resulting trust existed over the property in question. The court also had to determine the extent to which Mineo's cross-claim was successful. In addressing these issues, the court considered the evidence of financial contributions and the intentions of the parties regarding the property. The court found that Vella had not successfully established the existence of a constructive or resulting trust. In relation to Mineo's cross-claim, the court acknowledged that she had made some financial contributions but determined that these contributions did not entitle her to the full extent of her claim.

The court awarded costs on the summons and statement of claim to Mineo, given that Vella's claims were unsuccessful. As for the cross-claim, the court found that Mineo had been partially successful. She was awarded 80% of her costs because, although she had not achieved complete success, her claim was substantive. The court's reasoning reflected a balanced approach, recognising Mineo's contributions while also considering the limitations of her claim. The final orders of the court included an award of costs to Mineo and a determination that no trust existed over the property.

Orders