Zeaiter v Reliance Financial Services - [2008] NSWSC 519

CITATION: Zeaiter v Reliance Financial Services [2008] NSWSC 519

HEARING DATE(S): 14 May 2008

JUDGMENT DATE :
29 May 2008

JUDGMENT OF: Gzell J

DECISION: Declarations made. 2nd defendant, and not trustee in bankruptcy, ordered to pay plaintiff's costs of the proceedings.

CATCHWORDS: PROCEDURE - Declaratory Relief - That not indebted to 2nd defendant and he holds no security over her property - Cross-claim for moneys owed, declaration that property charged and judicial sale - 2nd defendant became bankrupt - Trustee does not prosecute cross-claim and does not oppose relief claimed by plaintiff - Whether she is entitled to the declarations - Costs - Whether Bankruptcy Act 1966 (Cth), s 58(3)(b) prevents court proceeding with the matter - Whether no hearing on the merits and no order as to costs should be made

LEGISLATION CITED: Contracts Review Act 1980
Fair Trading Act 1987
Trade Practices Act 1974 (Cth)
Bankruptcy Act 1966 (Cth)

CASES CITED: Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 82 ALJR 173
Mango Media Pty Ltd v Velingos [2008] NSWSC 202
Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622

PARTIES: Annette Theresa Zeaiter (Plaintiff)
Sam Peter Cassaniti (Second defendant)

FILE NUMBER(S): SC 3801/06

COUNSEL: Mr A Fernon (Plaintiff)
Mr D Allen (Second defendant)

SOLICITORS: McCabe Terrill Lawyers (Plaintiff)
Hancocks Solicitors (Second defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

THURSDAY 29 MAY 2008

3801/06 ANNETTE THERESA ZEAITER v RELIANCE FINANCIAL SERVICES PTY LTD & ANOR

JUDGMENT

Introduction

1 Annette Theresa Zeaiter, the plaintiff, brought proceedings against Reliance Financial Services Pty Ltd and Sam Peter Cassaniti. The proceedings against Mr Cassaniti have been ordered to be heard separately and in advance of the proceedings against Reliance.

2 Mr Cassaniti is a bankrupt. The sequestration order was made on 10 April 2007. His trustee does not oppose further amendment of the statement of claim to seek the relief that is sought against Reliance from Mr Cassaniti as well.

3 The trustee does not oppose the grant of relief against Mr Cassaniti on the basis that no orders, including costs orders, would be sought against the trustee personally; no monetary orders, including costs orders, provable as debts in the bankruptcy would be sought; and that costs would be sought against Mr Cassaniti to be paid by Mr Cassaniti.

4 The trustee does not prosecute Mr Cassaniti’s cross-claim against Mrs Zeaiter and her estranged husband Raymond Zeaiter.

5 Mr Cassaniti did not appear at the hearing except in relation to costs.

Non-signature

6 By his cross-claim, Mr Cassaniti sought to enforce a retainer agreement between Cassaniti & Associates, accountants and consultants, and Mrs Zeaiter dated 20 October 2000. In her statement of claim, Mrs Zeaiter seeks a declaration that the engagement letter was not signed or agreed in by her. A similar declaration is sought with respect to a further engagement letter dated 10 June 2003.

7 Mrs Zeaiter said…

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 Zeaiter v Reliance Financial Services

Details

AGLC: Zeaiter v Reliance Financial Services [2008] NSWSC 519
Case: [2008] NSWSC 519
Decision Date: 29 May 2008

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Zeaiter sued Reliance Financial Services, seeking a declaration that she was not indebted to the second defendant and that he held no security over her property. Zeaiter also brought a cross-claim for moneys owed by the second defendant and sought declarations that her property was charged and that it should be subject to a judicial sale. The second defendant became bankrupt before the matter proceeded, and the trustee in bankruptcy neither prosecuted the cross-claim nor opposed the relief sought by Zeaiter. The court needed to determine whether Zeaiter was entitled to the declarations and whether the Bankruptcy Act 1966 (Cth), section 58(3)(b) prevented the court from proceeding with the matter. Additionally, the court had to decide whether, given that there was no hearing on the merits and no order as to costs, any costs should be awarded.

The court held that the plaintiff was entitled to the declarations sought because she had not been given the opportunity to contest the cross-claim due to the second defendant's bankruptcy. The court found that section 58(3)(b) of the Bankruptcy Act did not prevent the court from proceeding with the matter, as the section did not apply to the relief sought by Zeaiter. The court also considered that, despite no hearing on the merits, it was appropriate to make an order as to costs because the second defendant's bankruptcy and the trustee's inaction had effectively concluded the matter without a full hearing. The court granted the declarations sought by Zeaiter and ordered the second defendant to pay her costs.

In summary, the court granted the plaintiff the declarations she sought and ordered the second defendant to pay her costs. The court found that the plaintiff was entitled to the declarations and that the Bankruptcy Act did not prevent the court from proceeding with the matter. The court also determined that an order as to costs was appropriate, despite there being no hearing on the merits.

Orders