Martin v Gentilini [1999] NSWSC 339

New South Wales Supreme Court CITATION : Martin v Gentilini [1999] NSWSC 339 CURRENT JURISDICTION : Equity Division FILE NUMBER(S) : 1018/99 HEARING DATE(S) : 15 April 1999 JUDGMENT DATE : 15 April 1999

Shirley Lenore Martin (P) PARTIES : Carla Gentilini (D1) Paula Cazzioli (D2) JUDGMENT OF : Master McLaughlin

COUNSEL : Mr. I. Sanderson (P) Mr. L. Ellison (D) SOLICITORS : Priests with McCarron & Sork (P) Bull, Son & Schmidt (D) CATCHWORDS : DECISION :

SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

MASTER McLAUGHLIN

Thursday, 15 April 1999

1018/99 SHIRLEY LENORE MARTIN -v- CARLA GENTILINI & ANOR JUDGMENT

1 MASTER: By notice of motion filed on 19 March 1999 the plaintiff, Shirley Lenore Martin, as administrator of the estate of Vinicio Nello Cenedese, seeks orders that judgment be entered for the plaintiff on her claim pursuant to Part 13 of the Rules; that the defence be struck out, the cross-claim be struck out, and judgment be entered for the cross-defendant on the cross-claim. 2 There has also been filed in Court an amended notice of motion by the plaintiff, which includes, as paragraph 1A, an order that judgment be entered for the plaintiff pursuant to Part 18 rule 3 of the Rules. 3 At the commencement of the hearing Counsel for the plaintiff informed the Court that the application was grounded not only on Part 13 of the Rules, which Part relates to summary disposal of proceedings, but also upon Part 18 rule 3, which rule relates to judgments on admissions. 4 The statement of claim was filed on 6 January 1999. It is asserted in that pleading that Vinicio Nello Cenedese (referred to therein as "the deceased") provided the entirety of the purchase price of somewhat under $120,000 for the purchase of a property situate at and known as 20 George Street, Port Macquarie, of which property the defendants, Carla Gentilini and Paula Cazzioli, are the registered proprietors. 5 The plaintiff asserts in paragraph 1 of the statement of claim an interest that, in the premises, the defendants hold the land as trustees for the estate of the deceased. 6 By their defence, which was filed on 26 February 1999, the defendants admitted paragraphs 1, 2 and 3, paragraphs 5 to 11 inclusive, and paragraph 13 of the statement of claim, and (subject to a matter which is not of any materiality in the substance) also paragraph 4. The assertion, which is an assertion of law, contained in paragraph 12 of the statement of claim (that the defendants hold the land as trustees for the estate of the deceased) is the only matter in the statement of claim which is denied in the defence. 7 Part 18 rule 3 of the Supreme Court Rules provides in subrule (1): Where admissions are made by a party, whether by his pleading or otherwise, the Court may, on the application of any other party, give any judgment or make any order to which the applicant is entitled on the admissions. 8 The plaintiff submitted that, upon the matters admitted and upon the assertions of the claim which are expressly admitted by the defence, the plaintiff is entitled to judgment that the defendants as the registered proprietors of the subject property hold that property on a resulting trust for the person who provided the entirety of the purchase price of that property, being the deceased; and, since he is now dead, on a resulting trust for his estate. 9 No part of the defence addresses itself to any matter which would tend to rebut that consequence of a resulting trust in favour of the deceased. 10 During the course of submissions Counsel for the defendants received from me a clear indication that if the pleadings remained in the form in which they presently stand I would be disposed to make an order of the nature now sought by the plaintiff for judgment for the plaintiff upon the admissions made by the defendants in the defence. In response Counsel for the defendants has now sought, in effect, that I should not proceed to a final determination upon the notice of motion which is presently before me, but that I should give to the defendants an opportunity to re-plead their defence to raise matters which would, so it is submitted, tend to rebut the consequence of a resulting trust. That appears to me to be the clear consequence of the facts alleged by the plaintiff in the statement of claim which are expressly admitted by the defendants in their defence. 11 The plaintiff opposes such a course and opposes any such leave being granted to the defendants to file an amended defence. Nevertheless, it seems to me that it is appropriate that leave should be granted. Since the plaintiff has not seen any draft of such an amended defence it is appropriate that the present notice of motion remain on foot. 12 However, as I have already indicated, the leave which is sought by the defendant will be granted only upon terms that the defendants pay the costs of the plaintiff's notice of motion up to and including today's hearing. 13 I make the following orders: 1. Upon the application of the defendants, which is opposed by the plaintiff, I order that the amended notice of motion filed by the plaintiff on 15 April 1999 be stood over generally, with liberty to restore to the Registrar's list on seven days notice. 2. I order that leave be and hereby is granted to the defendants to file and serve an amended defence and cross-claim on or before Thursday, 6 May 1999. 3. I order that the costs of the notice of motion filed by the plaintiff on 19 March 1999 and of the aforesaid amended notice of motion up to and including today be paid by the defendants. 4. I grant leave to the plaintiff to proceed forthwith to assessment of the foregoing costs. **********

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