Garcia v Delfino [2003] NSWSC 1001

Garcia v Delfino [2003] NSWSC 1001

Neither the orders made by Santow J nor the reports delivered by Mr Frazer were of a kind that could be adopted under Part 72 rule 13 of the Supreme Court Rules as a basis for judicial determination of the parties' substantive rights. The court also has no inherent jurisdiction to force upon the parties a binding regime based on those reports. Further, the evidence did not establish sufficient grounds for an order requiring the plaintiffs to account on the basis of 'wilful default.' Both notices of motion were therefore dismissed.

Parties
First Plaintiff: Daniel Garcia; Second Plaintiff: Rubens Locaputo; Third Plaintiff: Locaputo-Garcia & Co Pty Ltd; First Defendant: Daniel Delfino; Second Defendant: D&D Property Investments Pty Limited
Jurisdiction
Australia
Judgment Date
05 November 2003
Procedural Posture
Equity/partnership Dispute / Interlocutory (motions for Orders Regarding Accounting and Adoption of Reports)
Outcome
Both plaintiffs' and first defendant's notices of motion dismissed.
Legal Topics
Reference of Questions to Referee/accountant, Orders for Account on Wilful Default Basis, Partnership Dissolution, Inherent Jurisdiction of the Court
Equity Partnership Law Civil Procedure Reference of Questions to Referee/accountant Orders for Account on Wilful Default Basis Partnership Dissolution Inherent Jurisdiction of the Court

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Parties

Daniel Garcia

First Plaintiff

Rubens Locaputo

Second Plaintiff

Locaputo-Garcia & Co Pty Ltd

Third Plaintiff

Daniel Delfino

First Defendant

D&D Property Investments Pty Limited

Second Defendant

Procedural Posture

Equity/partnership Dispute / Interlocutory (motions for Orders Regarding Accounting and Adoption of Reports)

Legal Issues

  1. 1 Whether the reports of the accountant may be adopted by the court under Part 72 rule 13 of the Supreme Court Rules
  2. 2 Whether the court has inherent jurisdiction to order the parties to resolve their disputes in accordance with the accountant's reports
  3. 3 Whether there are grounds for requiring the plaintiffs to account on a wilful default basis

Ratio Decidendi

Neither the orders made by Santow J nor the reports delivered by Mr Frazer were of a kind that could be adopted under Part 72 rule 13 of the Supreme Court Rules as a basis for judicial determination of the parties' substantive rights. The court also has no inherent jurisdiction to force upon the parties a binding regime based on those reports. Further, the evidence did not establish sufficient grounds for an order requiring the plaintiffs to account on the basis of 'wilful default.' Both notices of motion were therefore dismissed.

Court Disposition

Both plaintiffs' and first defendant's notices of motion dismissed.

Orders

  • Plaintiffs' notice of motion filed 20 July 2002 dismissed.
  • First defendant's notice of motion filed 13 August 2002 dismissed.