Cendron v Cappellazzo & Anor [1999] QSC 434

} "]/.71 0 State Reporting Bureau .t, ! TRANSCRIPT OF PROCEEDINGS Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. Issued subject to correction upon revision. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION JONES J No 12 of 1999 ILARIO CENDRON and ANGELO CAPPELLAZZO, ANITA DOOGOOD and TERESA DICKENSON CAIRNS .. DATE 30/11/99 JUDGMENT Applicant/Plaintiff Respondents/Defendants It FI 1111 '-, The Law COllrls, CI'I"-~(~ Sln'd, Bri,';hallt\ Q. -tOOO -- 1 of 7 -- 301199 D.1 T5/ML MIT CNS1100/99 (Jones J) HIS HONOUR: The plaintiff is ~ resident of Italy, and claims to be the legal and beneficial owner of land in Italy situated in the town of Treviso. Hereinafter I will refer to this simply as the land. The land JS formally owned by Andreina Cappellazzo who died on 13 Dec~mber 1996, leaving her ~ residuary estate to her three ~hildren, the defendants in the action. The three children ar(i also co-executors under her, will. i On 13 July 1994 the deceased agreed in writing to transfer the land to the plaintiff for the sum of seventy million lire. The agreement was struck whilst: the deceased was in Italy, but , 1 10 20 it appears the formalities of the transfer were not completed ( immediately. The plaintiff alleges that he paid the full purchase price whilst the dececised was in Italy. The deceased ~ acknowledged this to be so in~ later document. In order to protect the plaintiff's interest, the deceased executed a limited will in Italy, dated 12 August 1994, whereby the plaintiff was to inherit her iriterest in the land, thereby protecting his interests until~the formal conveyance of the land to him. The deceased returned to Australia, and on 3 July 1995 executed another will which revoked all former wills. By this ~ later will she left her residu~ry estate to her children as ~ mentioned. Upon the deceased's death, the plaintiff propounded the limited will with the knowledge and concurrence of the three defendants, and by that means the land was transferred into his name, and~named the members of his family. 2 JUDGMENT 30 40 50 60 -- 2 of 7 -- ) 301199 0.1 TS/ML MIT CNSll00/99 (Jones J) Deeds of acceptance and acquie~cence of this step were signed by each of the defendants between 28 and 30 April 1997. It was only after this had happened that the later will was found~ The defendants now arg~e that the limited will made in Italy was revoked, and the transfer effected pursuant to its terms was invalid. . 10 They have retained a la~yer in Italy, a Mr Manildo, to seek such a determination in the Italian Courts. Apart from the question of the validity of the process by which the transfer was achieved, there is an issue between the parties as to whether the purchase price has been paid in 20 full. If it has, then the plaintiff would have a clear right to have the land transferred to him. It would be a case of enforcing this right under a contra'ct made in Italy with respect to land situated in Italy, where every aspect of the contract was, or was to be, performed in Italy. 30 The resolution of the dispute ultimately turns on a question of fact, whether the purchase I)rice has been paid in full, all the events concerning which occurred in Italy. One can only assume that procedures in the Italian Courts would permit the 40 litigation of this issue in the same proceedings which the defendants have instituted with respect to the validity of the transfer. The plaintiff argues, however, that the question of his right 50 to hold the land should be litigated in Queensland. He has instituted proceedings claiming a declaration. that at the time of the deceased's death, the land was beyond the dispositive operation of the last will of the deceased. The basis for 60 3 JUDGMENT -- 3 of 7 -- 301199 D.1 T5/ML M/T CNS1100/99 (Jones J) this declaration is that havins regard to all the circumstances known to the deceased at the time of making her will in July 1995, she would h4ve - (I) believed the land to have been sold to the plaintiff; (II) (III) known that she had re:ceived the purchase price; believed that the limited will gave effect to her contractual obligations., Whether these matters will finally determine what is the true construction of the will is a matter which is not necessary to answer now, but it suffices to observe that there is rather more complexity and uncertainty in the cause of action in Queensland, then the fact determination at the centre of any dispute as to the performance of the terms of the contract made in Italy. The point at issue in this application is whether the Queensland proceedings ought to be favoured as the proper vehicle for the determination of the dispute between the parties. The Queensland action proceeds on the basis that the deceased was paid the full price for the land, and that either as a matter of personal obligation, or by reason of the construction of her will, her executors should not disturb its registration, although it was nade pursuant to the limited Italian will. The Italian proceedings, which I do not fully understand, seem to seek such a determination of whether the· limited Italian 4 JUDGMENT 10 20 c 30 c- 50 60 -- 4 of 7 -- 301199 D.1 T5/ML MIT CNS1100/99 (Jones J) will was properly propounded, it having been revoked by the execution of the later will. 'Ihis raises the same question of construction in accordance witl, the deceased's intention, and it depends on the factual issue of whether the purchase price has been paid. Despite this, the plaintiff seeks to restrain the defendants from pursuing a determination in the Courts in Italy. This is put on two grounds, firstly that the commencement of the Queensland action was prior in time, and secondly that the Italian proceedings are oppressive and vexatious. I As to the first point, the difference in time is not particularly significant in my view. The Queensland action was commended on 31 August 1999, but only after a letter of demand, dated 28 May 1999, had;been received from the defendants' Italian lawyer. The plaintiff's response to that letter was dated 25 August 1999, and the proceedings commenced approximately a week later. It is not clear when the Italian proceedings were commenced. The only document from those proceedings is entitled "Subpo~na and Summons", and dated 5 october 1999. 5 JUDGMENT 10 20 30 40 50 60 -- 5 of 7 -- 301199 T6/LET M/T CNS1100/99 (Jones J) I am not sure if this document is the initiating document, but it does have some appearance of one. Nor is there any evidence of the nature of the jurisdiction exercised by the Court in question, nor of the standard or training of the judicial officer. The assertion that these proceedings are oppressive is based on the speed with which a determination is to be made, and the interpretation of the purpose of that document by counsel for the plaintiff. It particularly suggests that the section under the heading "Conclusion" rather indicates some predetermination of the issues. In the absence of any expert evidence as to Italian law and procedures in the Court, I would interpret the part of the document under the heading "Conclusions" as being similar to orders sought, rather than an indication of some predetermination. Regardless of this uncertainty, I find nothing in the material before me to suggest that the proceedings in the Italian Court are harsh or oppressive, or not receptive to a counterclaim by the plaintiff that he is entitled to have the land transferred to him. I am not, therefore, prepared to restrain the defendants from pursuing their claims in the Court in Italy on the ~aterial presently before me. Obviously, it is inappropriate for the parties to be litigating the same issues in separate actions in two 10 20 30 40 50 different countries. Obviously, also, the choice of law questions will have to be determined at some stage, preferably 60 6 JUDGMENT ( c -- 6 of 7 -- 301199 T6/LET M/T CNS1100/99 (Jones J) once all the issues of claim and counterclaim have been identified. I do not believe these questions should be determined either in a piecemeal or summary way. Since there is no application to stay the Queensland proceedings they shall remain on foot, but I will dismiss or, if required, adjourn the app~ication to ~estrain the defendants from further proceeding with their claim in the courts in Italy. The application sought an order that the defendants be appointed to represent the estate. The defendants were sued in their representative capacity and no objection has been taken by them to this. On my reading of Rule 71, such an order does not appear to be necessary, nor would it have been under the previous provision of the Rules of the Supreme Court Order 3 Rule 9. The matter does not seem to be caught by the sections 931 and 93J of the Supreme Court Act of 1991, but I would hear further argument on this point if it is necessary. On the material before me, and as I understand the effect of the Rules, it seems to me unnecessary to make an order that the defendants represent the estate, given the manner in which they have been served and the fact that they have not taken any objection to their being joined in a representative capacity. I will adjourn the further consideration of this matter to 13 December 1999. I will reserve the costs of this application to that date. 7 JUDGMENT 10 20 30 40 50 60 -- 7 of 7 --