Supreme Court New South Wales Medium Neutral Citation: 27 Norton Street Pty Ltd v Famularo [2012] NSWSC 278 Hearing dates: 5, 6 & 7 September 2011; 5 & 6 March 2012 Decision date: 27 March 2012 Jurisdiction: Equity Division Before: Gzell J Decision: Judgment for cross-claimant for contributions paid including deposit plus unpaid invoices for work done together with interest. Catchwords: JOINT VENTURE - Generally - whether payments to cross-defendant by cross-claimant contributions to a joint venture to develop residential dual occupancy on land or contributions to purchase price of one of the houses - whether late argument that deposit not recoverable should be allowed - whether election to terminate communicated to cross-claimant - whether prior notice requiring performance within a reasonable time required Legislation Cited: Uniform Civil Procedure Rules Cases Cited: Fiorelli Properties Pty Ltd v Professional Fencemakers Pty Ltd [2011] VSC 661 Howe v Smith (1884) 27 Ch D 89 Havyn Pty Ltd v Webster (2005) 12 BPR 98146 Karacominakis v Big Country Developments Pty Ltd [2000] NSWCA 313; (2000) 10 BPR 97843 Rian Financial Services Pty Ltd v Alfred Investment Projects Pty Ltd (1988) 90 FLR 215 Category: Principal judgment Parties: John Famularo (Cross-Claimant in 1st Cross-Claim & Cross-Defendant in 2nd Cross-Claim) 27 Norton Street Pty Ltd (First Cross-Defendant in the 1st Cross-Claim) Garth Paterson (Second Cross-Defendant in the 1st Cross-Claim & Cross-Claimant in 2nd Cross-Claim) Representation: Counsel: R Gration (Cross-Claimant in 1st Cross-Claim & Cross-Defendant in 2nd Cross-Claim) M Ashhurst SC/ C Carter (Cross-Defendants in 1st Cross-Claim & Cross-Claimant in 2nd Cross-Claim) Solicitors: Leon M Ratner & Associates (Cross-Claimant in 1st Cross-Claim & Cross-Defendant in 2nd Cross-Claim) Hones La Hood Lawyers (Cross-Defendants in 1st Cross-Claim & Cross-Claimant in 2nd Cross-Claim) File Number(s): SC 2010/284052 Publication restriction: No Judgment 1John Famularo, the cross-claimant in the first cross-claim, made a number of payments to Garth Paterson, the second cross-defendant. Mr Famularo said the payments were his contributions to a joint venture to develop a building at 27 Norton Street, Randwick in New South Wales with residential dual occupancy. Mr Paterson maintained that the moneys were part payments for a share in 27 Norton Street Pty Ltd, the plaintiff and owner of the property, granting sole occupancy rights to one of the houses. 2Mr Famularo said he was approached by Mr Paterson at various times to become involved in various development projects that Mr Paterson was undertaking. Mr Paterson acknowledged that he had, on a number of occasions, had general discussions with Mr Famularo about various developments he had undertaken and the profits generated by them. But he denied ever asking Mr Famularo to become a joint venture partner or other type of investor with him and he denied offering Mr Famularo any share in the profits of those developments. 3I do not think it necessary for me to resolve this conflict in the evidence because it is the terms of the conversation with respect to the development of 27 Norton Street that is critical. Much evidence was adduced that had little to do with the issues to be decided by the court. This led to the matter being stood over from September 2011 to March 2012. 4Mr Paterson suggested that Mr Famularo look at 27 Norton Street. He did and on 27 November 2007 he sent Mr Paterson a text message as follows: "If you want to go halves in the cost and development of Norton Street I am in. I can give you $750K now. Please think about it, if it works for you." 5It was submitted that Mr Paterson in an affidavit selectively quoted from this message and deliberately omitted the first sentence. It was submitted that I should not accept his evidence that he did not have access to a copy of the message when he prepared his affidavit. 6Again, I do not think that much turns on this because the entire message was before the court. 7Neither Mr Paterson nor Mr Famularo were satisfactory witnesses. Mr Famularo said that his motivation for getting into the deal was to learn project management. He was offered none but did not complain to Mr Paterson. He noticed that Mr Paterson had made changes to the internal layout of the units but he made no complaint to Mr Paterson about that either. 8Mr Paterson was referred to an over-statement of acquisition costs half of which Mr Famularo was to pay of $17,494.00 being GST upon which Mr Paterson claimed an input tax credit. He said that over lunch that day he had found three invoices that accounted for the difference. They did not. He then, opportunistically, said it might be interest on a mortgage. 9I approach this judgment by reference to the contemporary documentary evidence and oral evidence in which both Mr Paterson and Mr Famularo agree. 10On 15 January 2008, Mr Famularo and Mr Paterson met at Mr Paterson's house. They agree that Mr Paterson referred to plans for a single development and said words to the effect of: "now you are on board I'll change it back to a dual occupancy development". Mr Famularo said that Mr Paterson continued: "because I want to help you and let you become involved". Mr Paterson said he continued: "because I want to help you to buy a house to live in." 11It was agreed that Mr Paterson said: "it is company title. I hope to be able to subdivide it and get Torrens title down the track." 12Mr Famularo said that Mr Paterson also said that Mr Famularo would initially pay a deposit of 10% of half the purchase costs and then, later, half the cost of building the two houses. In cross-examination Mr Paterson agreed that he had said this. 13Mr Paterson said he added: "you also pay me 50% of the difference between the cost to build your house and what mine sold for and that will be the price for your house". Mr Famularo denied this part of the conversation. 14When cross-examined about the 50% differential, Mr Paterson volunteered that Mr Famularo had said that Mr Paterson should keep 90% of the profit on sale of his house but he told Mr Famularo that he would only keep 50%. There was no mention of this in his affidavits. Mr Famularo denied any mention of 50% during their discussion in January 2008. 15Mr Paterson and Mr Famularo met again on 15 February 2008. Mr Famularo was told that half the cost to date was $828,195.00. Mr Famularo wrote a cheque for $82,819.50 as a 10% deposit. Mr Famularo also agreed to perform glazing work for 27 Norton Street at cost. 16Mr Paterson was criticised for overstating the costs by the GST component. There was also the criticism that the cost of preparing plans was not $34,403.80 but, rather, $16,413.64. These are matters to be considered by an Associate Judge if Mr Famularo is entitled to an account of profits. 17On 1 March 2008, Mr Paterson sent an email to Mr Famularo stating: "just a quick email as discussed, to confirm the payment from you of $82,819.50 as a deposit on the property that we will be developing at 27 Norton Street." 18It was submitted that this email confirmed a joint venture development at 27 Norton Street as it was inconsistent with the purchase of a share in a company titled property. I do not agree. The land at 27 Norton Street was held on company title. The email was equally open to the interpretation that the development at 27 Norton Street to which Mr Famularo was to contribute would give rise to the two shares in the company giving occupancy rights to the two houses. 19On 3 April 2008, Mr Paterson requested a further payment and Mr Famularo paid him $300,000.00. A further $100,000.00 was paid to Mr Paterson on 6 August 2008. In the cheque stub Mr Famularo described the payment as "house purchase". That suggests the arrangement was the purchase of a share in a company title development rather than a joint venture in the development of 27 Norton Street. Mr Famularo's explanation was that he gave that description so that his accountant would not treat it as an expense of his glazing business. 20In August 2008, Mr Famularo told Mr Paterson that he was not able to contribute the full half cost of $828,195.00. He suggested, and he said Mr Paterson agreed, that the development costs be funded by the bank against the property. 21That is what happened. The company took out a $1.2 million non-amortising, non-revolving, rolling 30-day bank bill facility from the National Australia Bank. 22When Mr Famularo informed Mr Paterson that he was not able to fund his share of the development costs, Mr Famularo claimed that Mr Paterson said: "OK we'll have to talk about this later." 23Mr Paterson said he did not agree to a variation to the arrangement with Mr Famularo to relieve him from paying half the construction costs. Because Mr Famularo had indicated that he could not pay his share of the construction costs, Mr Paterson was forced to raise the funds elsewhere. 24On 25 August 2008, Mr Paterson wrote to Mr Famularo in the following terms: "Just a quick note regarding our arrangement at 27 Norton Street, Randwick. The agreement we have is for you to purchase one half of the development site at 27 Norton St, Randwick, including all costs associated with the purchase and development application. After that is completed we will begin the development. It is agreed that you will fund half of the cost of the development. Upon completion of the development I will sell my half, and whatever the difference between my sale price and your overall cost, you will contribute 50% of that difference to me. The approximate costs associated with this development are: The purchase of half the development site, architectural plans, D.A. etc: approx $820,000.00 The cost of half the development: approx $600,000 I would expect a sales result of at minimum $1.85 million from the sale of my half of the development, which would result in an approx profit on cost of $430,000.00. As of today's date I have received $482,819.50 from you towards the purchase of half the development site." 25Mr Famularo said he did not read the letter when he received it. He said, further, that when he did read it he did not raise any discrepancy with Mr Paterson because he was not going to be able to pay much more to him. 26If the letter is to be accepted as Mr Paterson's understanding of the arrangement then it supports his contention that the arrangement was for the purchase by Mr Famularo of one of the houses at 27 Norton Street by purchase of the share giving him sole occupancy rights. 27I find it inherently improbable that Mr Famularo did not read the letter when he received it. That he did not refute its terms also supports Mr Paterson's case that the letter correctly reflected the agreement. 28On 9 September 2008, Mr Famularo told Mr Paterson that he was unable to pay the balance of $345,000.00 of his half share of the acquisition costs. He was $100,000.00 short. 29Mr Famularo's version of the conversation was that Mr Paterson said that if Mr Famularo gave him $245,000.00 he would give him an IOU for the remaining $100,000.00. Mr Paterson denied any discussion of the short payment or IOU. 30Mr Famularo told Mr Paterson that he needed some sort of security and asked for the share in the company. He said that Mr Paterson agreed to that course. Mr Paterson said he responded: "I cannot give you something you haven't paid for." 31That night Mr Famularo sent Mr Paterson an email in the following terms: "When we spoke this morning, and I asked you for something such as the share in the company, as security for the money I am giving you. I have thought more about it and have come up with, I think, a better idea. When I give you another $240,000 towards the land purchase, why can't we treat the total amount as a loan to you, subject to a rate of interest and to be paid back in 12 months (or earlier). You mentioned that you would need to put a caveat on the property to protect your additional financing of the development costs. Instead of that, can you put a caveat that provides for the sale of the property only, after repayments of the 'loan'. This arrangement between the two of us is simpler for you, and gives me some security, don't you think? As far as a share of the profit goes ...I leave that up to you. That is not my motivation for doing this project with you." 32The email confirms the request by Mr Famularo for security, puts forward an alternative arrangement of loan and leaves it to Mr Paterson to determine what share of profit Mr Famularo should take. The last paragraph supports Mr Famularo's claim that the arrangement was a joint venture. 33The parties met again on 12 September 2008. Mr Famularo paid $245,375.50 which left exactly $100,000.00 owing as half of the construction costs. 34Mr Famularo said he signed an IOU for $100,000.00. Mr Paterson denied that any IOU was considered at the meeting. 35Mr Paterson said that Mr Famularo refused to pay any more moneys unless he obtained security in the form of the share in the company. 36A share transfer was executed by Mr Paterson as transferor and Mr Famularo as transferee. It was backdated to 15 January 2008 to accord with the commencement of their arrangement. It was expressed to be in consideration of $828,195.00, half of the acquisition costs Mr Famularo had agreed to pay. 37The share transfer was accompanied by a hand written document signed by Mr Famularo and Mr Paterson in these terms: "I Garth Paterson do hereby agree to transfer one of my two shares (the only shares issued in the company known as 27 Norton Street Pty Ltd), to John Famularo I have undertaken this transfer as a matter of "good faith" as Mr Famularo has not yet paid me the amount stated on the transfer. Mr Famularo agrees that the share referred to above (copy attached) is not entirely owned by him until such time as all moneys expended on the project known as "27 Norton Street Pty Ltd", have been paid in full (half share of the overall costs) to Mr Paterson." 38Mr Paterson said that he told Mr Famularo at the meeting on 12 September 2008 that he did not agree to changing the agreement to a loan and he wanted payment of the full amount of the outstanding half share of the costs. 39The terms of the document signed at the meeting supports this contention. It made no reference to a loan and insisted upon payment by Mr Famularo of half the acquisition costs. 40Construction work began in January 2009. There were no further contributions by Mr Famularo. The company financed the costs through its bill facility. 41Mr Paterson said he attempted to contact Mr Famularo regarding the construction costs but Mr Famularo did not take his calls or return his messages. He said that in January or February 2009 he demanded the return of the share certificate to which Mr Famularo agreed but requested some form of new agreement regarding the moneys he had already paid to Mr Paterson. Mr Famularo agreed with this version of the facts but said it was Mr Paterson who had said they had to sort out a new agreement. But no new agreement was ever reached. 42Mr Famularo said that his obligation to contribute to the construction costs was upon further requests for payment by Mr Paterson and he made none. Mr Paterson said that the agreement was for Mr Famularo to pay him half the construction costs as they were incurred. This appeared to be Mr Famularo's evidence as well. 43After the conversation about working something out Mr Paterson concluded that the agreement he had with Mr Famularo no longer existed. 44On 25 May 2010 Mr Paterson asked Mr Famularo to sign a document in the following terms: "Just a quick update regarding our arrangement at 27 Norton Street, Randwick 2031. As per our original agreement, dated 25 August 2008 (copy attached), you were to: 1) Contribute approximately $830,000.00 for the purchase of half the land etc. 2) Contribute approximately $600,000.00 towards the development of the property. Upon your contributions being met in full and the development being completed, I was to sell my half of the development, (now known as 27a Norton St) and whatever the difference between my sale price and your overall cost, you agreed to contribute 50% of that difference to me. Unfortunately, neither of the contributions you were supposed to make has ever been fulfilled. As of today's date, you have contributed $728,195.00 in monies and approx $37,466.00 in kind. Although you have well and truly defaulted on our original agreement, we have come to an agreement to proceed as follows: What was going to be your retained half of the development (now known as 27 Norton St) will be sold. Although when we originally struck our agreement you were not going to sell, that agreement effectively allowed for you to retain 50% of the profit on your part of the development, (27 Norton St). Our amended agreement allows for you to profit from the 50% of the profit of the sale of 27 Norton St in the following manner: Your percentage of the profit on your portion of the development as agreed to in our original agreement, will be calculated on a pro-rata basis. In other words, you get out in profit percentage, what you put in as a percentage of the overall costs of the development. It is further agreed that any and all costs, expenses, damages etc. that I have incurred as a result of you defaulting on our original agreement will be deducted from any monies due to you from this project. This agreement in no way allows or implies that John Famularo has any right or interest in the property known as 27 Norton Street, Randwick 2031." 45Mr Famularo did not sign the document. 46It was submitted on Mr Famularo's behalf that this document was clearly consistent with an arrangement whereby the parties would share in the profits of the development. But the document is equally consistent with an arrangement to pay for the acquisition and construction costs associated with one house and to make a profit on the sale of it if desired. 47On 2 June 2010 Mr Famularo sent a text message to Mr Paterson asking him to calculate how much Mr Famularo owed for half of the cost of building and the financing costs as he was considering borrowing the money to buy one of the houses. 48Mr Paterson replied: "John, as you well know, any agreement we had in the past was made null and void by your non compliance some time ago. If it is your wish to buy the house you were previously interested in, now known as 27 Norton St, it should be finished and ready for sale soon after the sale of 27a Norton St. If it is that you are interested in purchasing the house now known as 27 Norton St, I'm sure we could come to some arrangement regarding a potential discount based on monies you had put forward previously." 49Mr Famularo asked for some idea of how much he needed to raise for 27 Norton Street to which Mr Paterson responded saying Mr Famularo could call him. He had his telephone number. 50On 4 June 2010 contracts were exchanged for the 27A Norton Street share and on 18 June 2010 contracts were exchanged for the 27 Norton Street share. 51On 7 July 2010 Mr Famularo sent Mr Paterson a facsimile setting out payments made by both he and Mr Paterson on the Norton street property. The facsimile continued: "I am sorry I wasn't able to put more money into the project but I gave it all I had.... As well as getting the money back that I have put in (including invoices totalling $112,395.40) - that amount comes to $803,590.40, after factoring in your payments to me - I am hoping you will be able to share 25% of the profit with me. If that is ok with you, can you please give me something in writing confirming the amount you will pay me, and a date for it." 52In my view the bulk of the evidence supports Mr Paterson's contention that the arrangement was for Mr Famularo to purchase one of the houses at 27 Norton Street by purchasing the share in the company granting occupancy rights to that house. 53It was not a joint venture in which Mr Famularo was entitled to 50% of the profits on sale of the two occupancy shares in the company. 54The amendment of the plans for dual occupancy when Mr Famularo "came on board" is indicative of a common intention that Mr Famularo was to acquire one of the houses. The description "house purchase" on the stub of the cheque for $100,000 given to Mr Paterson on 6 August 2008 was an accurate description of the use of the money. 55The fact that Mr Famularo's contributions were made to Mr Paterson and not to the company is indicative of an acquisition of a share in the company giving occupancy rights to a house. 56The notion of Mr Famularo purchasing half the development site as stated in the letter of 25 August 2008 had, by 12 September 2008, crystallised into the purchase of a share in the company giving occupancy rights to a house at 27 Norton Street. 57The transferred share was not entirely owned by Mr Famularo until his half share of the costs of acquisition and construction were paid. 58Mr Famularo's suggestion of the conversion of the arrangement into a loan was not accepted by Mr Paterson and did not come into existence. 59Nor did the need to give further consideration to the arrangement result in any amendment of it. 60Mr Famularo did not pay half the costs of acquisition and construction and Mr Paterson terminated the agreement. 61It follows that in my judgment Mr Famularo is not entitled to relief dependent upon the existence of a joint venture or partnership for the development of 27 Norton Street. In particular, Mr Famularo is not entitled to an order for an account of profits in respect of the proceeds of the transfer of the two shares in the company. 62In his statement of cross-claim Mr Famularo seeks relief, in the alternative, in the form of equitable compensation. Either as such compensation, or by way of restitution, or relief from forfeiture, Mr Famularo is entitled to the return of the moneys he paid to Mr Paterson, in total, $728,195.00. That figure includes the 10% deposit of $82,819.50. 63In his final address, Mr Ashhurst SC raised the question whether the deposit was recoverable by Mr Famularo. He was granted leave to file brief further submissions on this question. 64Reference was made to Fiorelli Properties Pty Ltd v Professional Fencemakers Pty Ltd [2011] VSC 661 in which Kaye J dismissed an appeal from a Local Court Magistrate who had dismissed a claim by a defaulting purchaser of fencing goods and services for the recovery of the deposit. 65His Honour referred to Howe v Smith (1884) 27 Ch D 89 in which the Court of Appeal described the function of a deposit as something given in earnest, as a guarantee by the payer of the deposit that the contract will be performed. The Court of Appeal also said that the principle was applicable to any contract and was not confined to contracts for the sale of real property. 66Kaye J dismissed the purchaser's claim for relief against forfeiture, as the matter had not been raised before the Magistrate. 67Reference was also made to Havyn Pty Ltd v Webster (2005) 12 BPR 98146 in which it was held that equity would not intervene to give relief against forfeiture in respect of a reasonable deposit, 10% or less, when the purchaser had not sought specific performance or otherwise offered to complete the contract. 68A pleader is not limited to pleading facts. A pleading may raise any point of law (Uniform Civil Procedure Rules, Pt 14 r 14.19). A pleading must give such particulars of any claim, defence or any other matter pleaded by the party as are necessary to enable the opposite party to identify the case that the pleading requires him or her to meet (Pt 15 r 15.1). In a defence or subsequent pleading a party must plead specifically any matter that if not pleaded specifically may take the opposite party by surprise (Pt 14 r 14.14(2)(a)). 69Mr Paterson did not raise the issue that relief from forfeiture did not apply to the deposit in his defence to the first cross-claim 70In my view the failure of Mr Paterson to plead non-relief from forfeiture of the deposit was such as might take Mr Famularo by surprise. 71It is too late to remedy the failure of the pleader. I reject the supplementary submissions on this issue. 72It was submitted on Mr Famularo's behalf that Mr Paterson did not communicate his election to terminate the contract to Mr Famularo. He did not say that the contract was terminated on the ground of Mr Famularo's breach or by issuing proceedings alleging termination. 73But as Giles JA said in Karacominakis v Big Country Developments Pty Ltd [2000] NSWCA 313; (2000) 10 BPR 97843 at [155] it is not necessary that the communication of acceptance of a repudiation be in those terms or by direct notification. Words or conduct may communicate acceptance if they are consistent only with electing to terminate the contract. 74Although the letter of 25 May 2010 from Mr Paterson to Mr Famularo sought Mr Famularo's signature, and thereby acknowledgement, of him having "well and truly defaulted" on their agreement and stating that the 27 Norton Street share would be sold, it is not unequivocal notice of termination because it goes on to offer an alternative arrangement. It evinces an intention to deal with Mr Famularo and that might include reinstating the former agreement. 75The other date put forward by Mr Paterson was 10 September 2010 when the 27 Norton Street share sale was settled. But I think the earlier date of 18 June 2010 when contracts were exchanged for the sale of that share was an unequivocal act consistent only with termination of the contract. 76It is from that date that I think interest should run on the $728,195.00. 77It was submitted on Mr Famularo's behalf that Mr Paterson did not serve a notice requiring performance within a reasonable time before electing to terminate the contract. 78Reference was made to Rian Financial Services Pty Ltd v Alfred Investment Projects Pty Ltd (1988) 90 FLR 215 at 222 where Miles CJ cited a passage from a text that, generally speaking, where time is not essential, the promisor's breach of the time stipulation does not give rise to a right to terminate unless the promisee first serves a notice requiring performance within a reasonable time. 79But as the Chief Justice said, citing another text, there are exceptions to that rule and if it is clear that the promisor cannot or will not perform, the promisee may be able to justify termination without first serving notice on the basis that performance of the contract has become substantially different from that intended by the parties. 80In addition to the cash payments made by Mr Famularo, he claims for unpaid invoices for glazing work he said he did for Mr Paterson. The amount claimed is $66,028.90 made up of the following invoices: Date Property Amount 29/11/2008 Carlisle St $29,150.00 17/3/2009 Carlisle St $28,809.00 31/8/2009 Carlisle St $2,706.00 26/1/2010 Carlisle St $2,270.40 19/5/2010 Norton St $37,466.00 13/6/2010 Blenheim St $7,000.00 26/1/2010 Hubert St $4,994.00 $112,395.40 81To this is to be added an invoice for $28,099.50 representing Mr Famularo's labour costs on 27 Norton Street. 82From this subtotal of $140,494.90 is to be subtracted payments of $37,000 as follows: Date Property Amount 2/11/2008 Carlisle St $7,000.00 2/12/2008 Carlisle St $10,000.00 29/12/2008 Carlisle St $5,000.00 2/1/2009 Carlisle St $5,000.00 16/7/2009 Carlisle St $5,000.00 7/8/2009 Carlisle St $2,000.00 29/4/2010 Blenheim St $3,000.00 $37,000.00 83Finally, a further amount of $37,466.00 with respect to 27 Norton Street paid on settlement of the 27 Norton Street share purchase is to be deducted. 84It was submitted in Mr Paterson's behalf that an invoice does not prove an underlying contract and there was no evidence from Mr Paterson of underlying contracts. 85But Mr Paterson had in an affidavit addressed these claims by Mr Famularo and had not asserted that Mr Famularo had not done the glazing work. 86Mr Famularo's evidence was that Mr Paterson orally directed him to a site and the work to be performed. And he rendered invoices to Mr Paterson. His bank records show payments made by Mr Paterson. 87There was in evidence a bank account in the name 29 Carlisle Street Pty Ltd. Some of the payments for Carlisle Street were made to Mr Famularo from this account. But that does not alter the fact that it was Mr Paterson who sought the work and there was no evidence that he was doing so on behalf of 29 Carlisle Street Pty Ltd. If the contract was between Mr Paterson and Mr Famularo it makes no difference that Mr Paterson paid some of the invoices from one of his companies. 88The balance owing on Blenheim Street of $4,000.00 Mr Paterson had said he would pay. But he subsequently withdrew this concession on the basis that Mr Famularo might have overcharged him. 89In my judgment Mr Famularo is entitled to judgment on the first cross-claim against Mr Paterson for $794,223.90 being the sum of $66,028.90 for work done and $728,195.00 for the refund of moneys paid to Mr Paterson with interest at Supreme Court rates from 18 June 2010. 90I will hear the parties on an appropriate interest calculation and I will hear the parties on costs. I direct the parties to bring in short minutes of order reflecting these reasons. 91The plaintiff commenced these proceedings by summons seeking an order that a caveat placed on the title of the Norton Street property be removed. Hamilton AJ ordered the removal of the caveat and the property has been sold. I will order that the summons be dismissed and I will hear the parties on costs. 92By the amended second cross-claim Mr Paterson sought damages against Mr Famularo. I will hear the parties on the appropriate disposition of the second cross-claim and I will hear the parties on costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 March 2012