Candeloro & Candeloro v Pernazza [1992] QSC 304

· _ ~<-- '1o/3o'i- State ~ Reporting Bureau 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.) SUPREME COURT-. CIVIL JURISDICTION THOMAS J No 1057 of 1992 ALBERTO CANDELORO apd LUCIANA ANNA MARIA CANDELORO . Plaintiffs and MICHELINA PERNAZZA Defendant BRISBANE .. DATE 31/08/92 JUDGMENT 1 -;'. -- 1 of 5 -- 310892 . HIS HONOUR: I have decided that leave should be granted to defend upon the giving of an undertaking in a form to be settled. The orders should include the amendment to the summons which was requested in paragraph 1. I run prepared to certify that the action be tried speedily. I do not, at this stage, see any purpose in giving special directions as to the conduct of it, and I intend to reserve the costs of the application unless there is some good argument' to the contrary. I publish my reasons. tipon the defendant by counsel undertald.n~ t.o J.odqe foJ:"tJn·.r?.t-.h _j_n favour of· ":-··· ,,,. the plaintiffs a consent caveat over the p~operty of the defendant of a value exceeding $135,000 ,. J:;eave to defend is granted. Grant leave to the plaintiff to amend the writ of summons in accordance with paragraph 1 of the summons. Certify that the action be tried speedily. Reserve costs. JUDGMENT 2 10 20 30 40 50 60 ( ~. -- 2 of 5 -- c ( ( IN THE SUPREME COURT OF QUEENSLAND No. 1057 of 1992 IN CHAMBERS BETWEEN: ALBERTO CANDELORO and LUCIANA ANNA MARIA CANDELORO AND: Counsel: Solicitors: Plaintiffs MICHELINA PERNAZZA Defendant REASONS FOR JUDGMENT - THOMAS J. Delivered the 31st day of August, 1992 S.D. Rapoport for the applicant plaintiff R.A. Perry for the respondent defendant Bells, Benowa, for the plaintiff Radcliff Lather & Buckland, Southport, for thedefendant Hearing date: 25th August, 1992 -- 3 of 5 -- C1 IN THE SUPREME COURT OF QUEENSLAND IN CHAMBERS BETWEEN: No. 1057 of 1992 ALBERTO CANDELORO and LUCIANA ANNA MARIA CANDELORO Plaintiffs AND: MICHELINA PERNAZZA Defendant REASONS FOR JUDGMENT - THOMAS J. Delivered the 31st day of August, 1992 This is an application for summary judgment under Order 18A of the Rules of Supreme Court. The plaintiffs are the vendors and the defendant is the purchaser of an interest in land pursuant to a contract dated 22nd May, 1989. The interest in question is one-third interest in a property at 15 Activity Crescent, Southport, which is an industrial property held under special leasehold under the provisions of the Land Act 1962. Having heard argument I reserved judgment in order to l examine the affidavit material more closely. Having done so I am satisfied that there are issues and questions in dispute which ought to be tried. I do not propose to recite the facts and circumstances. The affidavits of Mr. Vincent (including pages 2 and 4 of his report) and of Mr. Pernazza (including paragraphs 18 and 24) satisfy me that there is an issue fit for trial on the question of fraudulent misrepresentation inducing the sale to Mrs. Pernazza. There is sufficient evidence to suggest that this sale was part of a larger transaction under which Mr. Candeloro -- 4 of 5 -- C/, ( 2 disposed of his business interests in the company Gelati Italia Pty. Ltd. The material also suggests that Mrs. Pernazza' s discovery of the falsity of the representations was only quite recent. It is true that the manner in which the proposed defence has been presented is somewhat lacking in particularity. It comes close to failing the test of sufficient particularity showing that there are facts which make it reasonable that the defendant should be allowed to raise the defence (Wallingford v. Mutual Society (1885) Ab.Cas. 685 1 704; Queensland Truss and Frame Pty. Ltd. v. Grenadier Constructions No. 2 Pty. Ltd. Queensland Law Reporter 20th June 1 1992; Australia and New Zealand Banking Group v. Barry [ 1 99 2] 2 Qd. R. 1 2) . However sufficient facts are shown to lead me to the view that the defendants might be able to establish a defence 1 and it is appropriate that the defendant have that opportunity. It may also be noted that the bona fides of the defendant receives some support from the fact that her counsel has undertaken on her behalf that in the event of leave to defend being granted she will submit to a condition requiring the ( \ provision of security by bank guarantee in the sum of $136 1 769.07 1 conditioned upon the order of the Court in this action that such sum be paid as part of the performance required by the defendant pursuant to any decree of specific performance in this action. Leave to defend will be granted upon the giving of such an undertaking in a form to be settled. The order should include the amendment sought in the summons. The costs of the application should be reserved. -- 5 of 5 --