Pennimpede v Gerard Pennimpede & 2 Ors [2009] NSWSC 85

New South Wales Supreme Court

CITATION : Pennimpede v Gerard Pennimpede & 2 Ors [2009] NSWSC 85 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 17-26th November 2008

JUDGMENT DATE : 27 February 2009

JUDGMENT OF : Bryson AJ

At paragraph [186] Orders: On the Amended Statement of Claim of Vito Pennimpede: (1) Give judgment for the defendants (2) Order that the plaintiff pay the costs of the proceedings of the First and Second Defendants. On the Second Amended First Cross-Claim of Pasquale Pennimpede: (3) Order that an inquiry be conducted to ascertain and certify what sums ought to be paid by the Cross Defendants to the Cross Claimant and by the Cross Claimant to the Cross Defendants in relation to the land in folio 3/SP47101 and dealings and claims relating to that land since 25 October 2004; that $560.00 be charged against Pasquale Pennimpede in respect of dealings before 1 July 2003; that credits be allowed to Gerard Pennimpede and Rita Pennimpede for such amounts if any as may be justly allowable to them or either of them against Pasquale Pennimpede for: (i) Payments as guarantor of debts secured on Mrs. Caterina Pennimpede's house; (ii) Dealings with Mr. Scavarelli; DECISION : (iii) Any other repairs and expenditure relating to the land; that all necessary accounts be taken for the purposes of the inquiry, and that judgment be entered for recovery by the party entitled to the balance if any of the sums certified. (4) Direct that within 28 days Gerard Pennimpede and Rita Pennimpede file and serve accounts and Points of Claim: that within 56 days Pasquale Pennimpede file and serve Points of Defence showing which items are disputed and the grounds of dispute. (5) Appoint Friday 1 May 2009 at 9.30am before me for a directions hearing on the Inquiry. (6) Reserve costs of the First Cross Claim (7) Save as aforesaid dismiss the Cross Claim Upon the Second Cross Claim of Gerard Pennimpede and Rita Pennimpede: (8) Order pursuant to section 66G of the Conveyancing Act 1919 that Clayton David Childs and Murray Charles Reid be appointed trustees of the property known as 155-157 Five Islands Road, Unanderra (sometimes described as at Cringila), in the State of New South Wales, being the land comprised in Certificate of Title folio identifier 3/SP47101. (9) Order that the said land do vest in the said trustees subject to any incumbrances affecting the entirety of the said lands, but free from incumbrances (if any) affecting any undivided share or shares therein, to be held by the said trustees upon the statutory trust for sale under Division 6 of Part IV of the Conveyancing Act 1919. (10) Order pursuant to section 66I of the Conveyancing Act 1919 that each of the cross-claimants and the first cross defendant herein shall be at liberty to purchase the land whether at auction or by private treaty, upon such terms as the said trustees may think fit as to seeing off or accounting for the purchase money or any part thereof instead of paying the same. (11) Order that the cross-defendants pay the cross-claimant's costs of the Second Cross-claim.