Cassaniti v Katavic [2023] NSWCA 32

Cassaniti v Katavic [2023] NSWCA 32

The appellants did not challenge the orders made by Macfarlan JA and the matters relied upon did not constitute a material change in circumstances because they had substantively been relied upon before Macfarlan JA. The fact that the Court was now hearing the appeal and had heard oral argument was not a material change in circumstances. The interlocutory relief in paragraphs 2, 3 and 4 of the notice of motion was therefore dismissed with costs. A supplementary order for payment out was appropriate, but in the amount of $100,000 given that the appeal concerned Mr Katavic's and Ms Morvillo's rights and interests as unit holders as much as the breach of trust claim against Antalija...

Jurisdiction
Australia
Judgment Date
28 February 2023
Procedural Posture
Appeal; Application for Leave to Appeal; Interlocutory Motion / Concurrent Hearing of an Application for Leave to Appeal and an Appeal; Notice of Motion Filed 2 February 2023 Seeking Interlocutory Relief Concerning Funds Paid Into Court
Outcome
Paragraphs 2, 3 and 4 of the notice of motion filed 2 February 2023 were dismissed with costs; $100,000 was ordered to be paid out of Court to the second respondent.
Legal Topics
['injunction Pending Appeal' 'payment of Funds Out of Court' 'trustee Legal Costs' 'variation or Discharge of Orders Made by a Single Judge of Appeal' 'material Change in Circumstances']
['appeals' 'civil Procedure' 'trusts'] ['injunction Pending Appeal' 'payment of Funds Out of Court' 'trustee Legal Costs' 'variation or Discharge of Orders Made by a Single Judge of Appeal' 'material Change in Circumstances']

Case Brief

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Procedural Posture

Appeal; Application for Leave to Appeal; Interlocutory Motion / Concurrent Hearing of an Application for Leave to Appeal and an Appeal; Notice of Motion Filed 2 February 2023 Seeking Interlocutory Relief Concerning Funds Paid Into Court

Legal Issues

  1. 1 ['Whether the second respondent should be restrained from applying funds paid into Court for legal costs of the Court of Appeal proceedings and the proceedings at first instance until determination of the appeal.' 'Whether the funds in Court should be retained by the Court until determination of the appeal.' 'Whether the second respondent, as trustee of the Antalija Unit Trust, should be restrained from applying trust property towards legal costs until determination of the appeal.' 'Whether there had been a material change in circumstances since orders made by Macfarlan JA on 10 November 2022.' 'Whether a supplementary order should be made specifying an amount to be paid out of Court under order 3 made by Macfarlan JA.']

Ratio Decidendi

The appellants did not challenge the orders made by Macfarlan JA and the matters relied upon did not constitute a material change in circumstances because they had substantively been relied upon before Macfarlan JA. The fact that the Court was now hearing the appeal and had heard oral argument was not a material change in circumstances. The interlocutory relief in paragraphs 2, 3 and 4 of the notice of motion was therefore dismissed with costs. A supplementary order for payment out was appropriate, but in the amount of $100,000 given that the appeal concerned Mr Katavic's and Ms Morvillo's rights and interests as unit holders as much as the breach of trust claim against Antalija...

Court Disposition

Paragraphs 2, 3 and 4 of the notice of motion filed 2 February 2023 were dismissed with costs; $100,000 was ordered to be paid out of Court to the second respondent.

Orders

  • ['That paragraphs 2, 3 and 4 of the notice of motion filed 2 February 2023 be dismissed with costs.' 'That further to order 3 made by Macfarlan JA on 10 November 2022, of the funds held in Court for the second respondent, Antalija Developments No 4 Pty Ltd, as trustee for the Antalija Unit Trust, the amount of...