Agusta Pty Ltd v Official Trustee in Bankruptcy as Trustee of Estates of Gustavo Ferella and Angelo Ferella [2009] NSWCA 129

New South Wales Court of Appeal

CITATION: Agusta Pty Ltd v Official Trustee in Bankruptcy as Trustee of Estates of Gustavo Ferella and Angelo Ferella [2009] NSWCA 129

HEARING DATE(S): 7 May 2009

JUDGMENT DATE: 3 June 2009

JUDGMENT OF: Beazley JA at 1; Tobias JA at 2; Macfarlan JA at 55

(a) Appeal allowed; (b) Set aside the declarations made by Nicholas J on 24 July 2008 in paragraphs 5(i), (k), (l), (m) and (n) of his Honour's orders; (c) Remit the issue referred to in the declaration made in paragraph 5(m) of his Honour's orders to the primary judge for determination; DECISION: (d) Remit the question of the costs of the proceedings at first instance to the primary judge for his re-determination in light of these reasons and any other relevant matters; (e) That so much of the amount referred to in Order 3 made by Nicholas J on 24 July 2008 as is currently held by the respondent in its Common Fund, less an amount to be agreed between the parties as being the subject matter of the order for remittal referred to in paragraph (c) above, together with interest calculated in accordance with s 20J(4) of the Bankruptcy Act 1966 (Cth) be paid out to Riva (NSW) Pty Limited within 28 days of the date of this order to be held by it as trustee of the Cavallino Unit Trust; (f) That the amount of the Trust Fund to be held by the respondent for the purpose of and subject to the order for remittal referred to in paragraph (c) above be disbursed in accordance with the order of Nicholas J upon his determination of the matter so remitted to him; (g) The respondent's cross-appeal be dismissed; (h) The respondent to pay the appellants' costs of the appeal and the cross-appeal.