Calvo v Calvo [2019] NSWSC 213

Supreme Court New South Wales

Medium Neutral Citation: Calvo v Calvo [2019] NSWSC 213 Hearing dates: 1 March 2019 Date of orders: 01 March 2019 Decision date: 01 March 2019 Jurisdiction: Equity - Applications List Before: Kunc J Decision: Proceedings dismissed with indemnity costs Catchwords: CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — No reasonable cause of action disclosed Legislation Cited: Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Allen v Snyder [1977] 2 NSWLR 685 Calderbank v Calderbank [1975] 3 All ER 33 Calvo v Sweeney [2009] NSWSC 719 Shaw v State of New South Wales [2012] NSWCA 102 Category: Principal judgment Parties: Daniel Calvo (Plaintiff)

Athalie Calvo (Defendant) Representation: Counsel: R. Golovina - Solicitor (Plaintiff) P. Newton (Defendant)

Solicitors: RMG Law & Associates (Plaintiff) Stephen Wawn & Associates (Defendant) File Number(s): 2018/206878 Publication restriction: No

EX TEMPORE JUDgment (REVISED)

Summary 1. These proceedings are a family dispute about a large rural property near the Snowy Mountains (the "Property"). Without disrespect I shall refer to the family members by their given names. Daniel, for whom Ms R Golovina, Solicitor appeared is the plaintiff. He is one of the adult sons of the defendant, Athalie. Mr P Newton of Counsel appeared for Athalie on the instructions of her tutor. 2. In 1980 Athalie and her late husband, Peter, bought the Property as joint tenants. They made many improvements to it. On Peter's death, Athalie became registered proprietor of the Property by survivorship. In any event, Peter left Athalie his entire estate. 3. More recently, Athalie has put the Property up for sale. Daniel strongly objects to this. In his statement of claim filed on 8 August 2018, Daniel alleges that he has various legal and equitable interests in the Property entitling him to declarations of express, resulting or constructive trusts. At its most basic Daniel says he is entitled to that relief because Peter said from time to time that he (Peter) wanted the Property never to be sold and that it should stay in the family forever. Daniel also says that he contributed financially to the improvements to the Property. 4. By motion filed on 26 September 2018, Athalie seeks to have the proceedings dismissed under UCPR Part 13, Rule 13.4 and costs on the indemnity basis. After considering the pleadings and Daniel's evidence, the Court is satisfied to a high degree of certainty that this is a clear case where Athalie is entitled to that relief. Daniel's case does not appear to rise higher than that Peter wanted the Property to stay in the family. 5. On any view, that is not sufficient to make out a case for the relief sought in the statement of claim. If the proceedings went to trial on the basis of that statement of claim and the evidence that has been adduced, the Court is satisfied that the proceedings would fail.