Cassaniti v Katavic (No 2) [2023] NSWCA 107

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Cassaniti v Katavic (No 2) [2023] NSWCA 107 Hearing dates: 27, 28 February 2023 Date of orders: 23 May 2023 Decision date: 23 May 2023 Before: Gleeson JA at [1] Kirk JA at [190] Adamson JA at [191] Decision: CA 2022/261720 (Leave to appeal) (1) To the extent necessary, grant leave to appeal against the first and second respondents. (2) The summons seeking leave to appeal against the third respondent is dismissed, with costs. CA 2022/204856 (Appeal proceedings) (1) The appellants' notice of motion filed 2 February 2023 (par 5) is dismissed, with costs. (2) Refuse the appellants' oral application to amend par 3 of the claims for relief in the amended notice of appeal to include proposed orders 14A and 14B and the reference in order 17 to proposed orders 14A and 14B. Otherwise grant leave to amend the claims for relief in the amended notice of appeal to include in order 17 in substitution for the proposed words "Orders 14A and 14B", the words "the giving of security over the Moncrieff land in June 2017 as referred to in sub-par (a) of proposed Order 14B". (3) Appellants to file an amended notice of appeal consistent with order (2) above within 7 days. (4) Appeal allowed in part in relation to the misleading conduct claim. (5) Set aside the declaration made by the primary judge on 15 June 2022 in par 5, and in lieu, dismiss the first and second respondents' further amended statement of cross-claim filed 22 February 2022. (6) Otherwise dismiss the appeal against the first and second respondents. (7) Dismiss appeal against the third respondent. (8) The appellants to pay the third respondent's costs of the appeal. (9) Direct the appellants to file and serve short written submissions on the question of costs in this Court within 14 days, the first and second respondents to file and serve their response within a further 14 days, and the appellants to file and serve any reply within a further 7 days. Any such submissions are not to exceed 3 pages. Note that the question of costs in this Court will be determined on the papers. Catchwords: CONTRACTS — Misleading conduct under statute — Misleading or deceptive conduct — Representations — Where unitholders' agreement represented to be "standard" or "simple" — Where agreement contained unusual terms imposing high interest obligation on excess capital contributions — Where such terms inconsistent with prior informal agreement of parties CONTRACTS — Misleading conduct under statute — Misleading or deceptive conduct — Reliance —Whether representee relied on representation given commercial imperatives — Where unitholders' agreement signed in informal, quasi-familial context — Where representee would not have entered agreement had effect of impugned clauses been disclosed CONTRACTS — Misleading conduct under statute — Misleading or deceptive conduct — Causation of loss — Where informal agreement not binding — Where claimants entered into unitholders' agreement in reliance upon misrepresentation — Whether claimants proved probable counterfactual on which loss was alleged — Where "no transaction" case pleaded and run at trial — Where "different transaction" case advanced on appeal — Where counterfactual not put to relevant witness — Whether new point should be permitted on appeal EQUITY — Trusts and trustees — Breaches of trust — Whether payment by mistake — Whether mistaken payment became asset of trust — Where payment used to discharge trust liability — Where security later given over trust property — Whether trustee breached duty by preferring interests of unitholder APPEALS — Leave to appeal — Whether leave required — Interlocutory decisions — Whether declaration that terms of contract void finally determined rights of parties — Where other substantive issues and consequent relief left undetermined Legislation Cited: Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law ss 18, 237(1)(a)(i), 243(a)(ii) Supreme Court Act 1970 (NSW), s 101(2)(e) Trade Practices Act 1974 (Cth), s 87 Cases Cited: ACCC v TPG Internet Pty Limited (2013) 250 CLR 640; [2013] HCA 54 A Hudson Pty Ltd v Legal & General Life of Australia Ltd (1985) 1 NSWLR 701 Bale v Mills (2011) 81 NSWLR 498; [2011] NSWCA 226 Berry v CCL Secure Pty Ltd (2021) 271 CLR 151; [2021] HCA 27 Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225 Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153; [2001] NSWCA 61 Browne v Dunn (1893) 6 R 67 Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592; [2004] HCA 60 Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304; [2009] HCA 25 Campomar Sociedad Limitada v Nike International Ltd (2000) 202 CLR 45; [2000] HCA 12 Carter Holt Harvey Woodproducts Australia Pty Ltd v The Commonwealth of Australia (2019) 268 CLR 524; [2019] HCA 20 Computer Edge Pty Ltd v Apple Computer Inc [1984] HCA 47; (1984) 54 ALR 767 Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45 Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523 I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd (2002) 2010 CLR 109; [2002] HCA 41 Illawarra Hotel Company Pty Ltd v Walton Construction Pty Ltd [2012] NSWCA 61 Itex Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207; [2002] NSWCA 104 Jonval Builders Pty Ltd v Commissioner for Fair Trading (2020] NSWLR 1; [2020] NSWCA] 233 Ludwig v Jeffrey (No 4) [2021] NSWCA 256 Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494; [1998] HCA 69 McGuirk v University of New South Wales (2009) 75 NSWLR 224; [2009] NSWCA 321 Octavo Investments Pty Ltd v Knight (1979) 144 CLR 360; [1979] HCA 61 Reliance Financial Services Pty Ltd v Antalija Developments No 4 Pty Ltd [2022] NSWSC 519 Singh v Khan [2021] NSWCA 281; (2021) 363 FLR 88 Triden Properties Ltd v Capita Financial Group Ltd [1993] NSWCA 272 Warman International Limited v Dwyer (1995) 182 CLR 544; [1995] HCA 18 Whisprun Pty Ltd v Dixon (2003) 234 CLR 492; [2003] HCA 48 WorkPac Pty Ltd v Thearle [2016] NSWCA 303 Zong v Wang [2022] NSWCA 80 Category: Principal judgment Parties: Sam Cassaniti (First appellant) Nancy Morvillo (Second appellant) Dennis Katavic (First respondent) Antalija Developments No 4 Pty Ltd (Second respondent) Jocelyn Katavic (Third respondent) Representation: Counsel: Mr M Ashhurst SC / Mr D A Allen Mr T Alexis SC / Mr A L Oakes