Giumelli v Giumelli [1999] HCA 10

High Court of Australia Gleeson CJ McHugh, Gummow Kirby and Callinan JJ Giumelli v Giumelli (P55/1997) [1999] HCA 10

ORDER Appeal stood over to a date to be fixed for the making of orders joining as a party to the appeal the legal personal representative or representatives of the first appellant and for the making of final orders disposing of the appeal. After hearing further submissions The Court pronounced the following orders: —

1. That Rosa Giumelli, in her capacity as executrix of the estate of the late Giovanni Giumelli, the first-named appellant, be joined to this appeal.

2. That the appeal in this Court is allowed.

3.

That orders 2, 8 and 9 of the orders of the Full Court of the Supreme Court of Western Australia made on 12 March 1997 be set aside and, in place thereof, orders 1 and 2 of the orders made by Nicholson J on 26 May 1994 are set aside.

In place thereof it is declared that

(a) the respondent is entitled to payment by the appellants of a sum representing the present value of the promised lot to be determined by a judge of the Supreme Court in accordance with the reasons of this Court, taking into account all considerations for which allowances should be made in calculating that sum, so as to do equity between the parties to the action and all relevant third parties, and upon such further evidence as that Court may allow; and

(b) such sum when so ascertained and made payable by the appellants will be charged upon the whole of the Dwellingup property with interest under s 32 of the Supreme Court Act as fixed by that Court.

4. That orders 5, 6 and 7 of the orders of the Full Court made on 12 March 1997 be set aside and in place thereof it is ordered that the costs of the appeal and the cross-appeal to the Full Court be costs of the remaining proceedings in this action in the Supreme Court.