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[2017] NSWSC 468
procedural. Interlocutory directions and orders: defendants ordered to produce accounts and documents (including notices to produce) by specified times, subpoenas to be complied with by Mr Stefano Laface,...
This is an interlocutory judgment in a 2016 joint venture dispute about Ryde properties. The parties give sharply inconsistent accounts about who agreed what, and a key document's signature is contested. The proceedings have stalled, secured loans are mounting, and an elderly plaintiff occupies the property in uncertain circumstances. Slattery J ordered urgent production of documents and financial accounts, required parties to explain dealings with a solicitors' firm (Logan Fox), directed that solicitors or counsel familiar with the case attend directions hearings, authorised subpoenas and forensic examination of documents, and listed the matter for further directions on 28 April 2017. The Court flagged, but did not yet exercise, its power to appoint a receiver to preserve asset value if the parties do not act.
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Booth v Cerreto & Ors concerned an oral or partly written joint venture, said to have been made in about September-October 2011, involving residential land in Arthur Street, Ryde (the Ryde properties) ([4], [7]–[9]). The plaintiffs are Millie and Grant Booth and Mrs Maria Dominello (the registered proprietor until certain transfers), and the defendants are Norm Cerreto, Antonio Salerno, two corporate entities (Arthur Street Facility Management Pty Ltd and Arthur St Build Group Pty Ltd) and two banks (ANZ and Westpac) as fifth and sixth defendants (Parties list).
By April 2016 the plaintiffs commenced proceedings. Pleadings were exchanged, but defendants' evidence was delayed and only substantially filed between September 2016 and February 2017 ([6]). At directions hearings the parties' accounts diverged starkly about key matters: who were the parties to the joint venture, whether the agreement was oral or written, and the terms of the agreement, in particular whether the plaintiffs were entitled to half the residences from the development (plaintiffs' case) or substantially less under a formula or entitlement to a single residence (defendants' case) ([10]).
Central to the dispute is a document described as the 'Asset Sale Agreement'. The defendants produced an original bearing a signature purporting to be that of Mrs Dominello; she swore she had not signed it and had never seen it before defendants filed it in evidence ([11]). The defendants say their solicitor Mr Stefano Laface and another firm, Logan Fox, were involved in the transaction; the plaintiffs say they never engaged Logan Fox ([12]). The chain of custody of the Asset Sale Agreement after it left AJL Legal is unclear. Where the parties' versions clash, the Court concluded expert handwriting examination is likely to be necessary and directed production and custody of originals for that purpose ([11]).
Financially, the joint venture had not developed the land. Market appraisals placed the Ryde property's value about $4.2 million, but secured loans to Westpac (~$2m) and ANZ (~$575,000) existed; the joint venture's equity was roughly calculated by the accountant tendered to be approximately $1,632,000, with various payments and liabilities noted ([1]–[2] after the 7 April directions material). The joint venture had stalled and the equity risked erosion by interest, unpaid rent and ongoing legal costs ([3], [9]).
On 24 April 2017 Slattery J conducted a directions hearing, concluded the matter was not ready for mediation or hearing given evidentiary gaps, ordered wide-ranging production of documents and accounts, required attendance of solicitors or counsel fully conversant with the case at the next directions, and expressly flagged the Court's power to appoint a receiver to preserve the assets if the parties did not act to preserve equity ([6]–[11], Orders).
The Court's decision is driven by the overriding purpose of the Civil Procedure Act s 56: to secure the just, quick and cheap resolution of the real issues in dispute. Where parties have produced conflicting factual narratives and essential documents are missing or contested, the Court cannot sensibly refer the matter to mediation or trial. Rather, it must take case-management steps to define the issues and preserve any subject-matter value so that the processes of mediation or trial will be meaningful and not futile ([6], [5]).
Two problems were decisive. First, an evidential impasse: sharply divergent accounts about the making and terms of the joint venture, an allegedly forged document, and opaque transmission of the Asset Sale Agreement raised the real likelihood that expert handwriting evidence and careful documentary production would be required before any dispositive process ([11]). Second, a substantive commercial risk: the joint venture was stalemated with high secured debt and no development; absent action the equity could be dissipated by interest and costs and a bank sale could follow, prejudicing Mrs Dominello's habitation and all parties' interests ([3], [9]).
Given these facts, the Court exercised familiar case-management tools: ordering prompt and comprehensive production of documents and accounts; requiring practitioners conversant with the matter to attend to enable efficient directions; and signalling the equitable/statutory jurisdiction to appoint a receiver to preserve asset value if the parties could not or would not act themselves ([6]–[8], Orders).
The Court did not immediately appoint a receiver because of the costs and because it preferred to give parties a short opportunity to comply with orders and produce the outstanding material; receivership was therefore a warned contingency, not immediate relief ([10]).
Before this decision the legal principles invoked by the Court were well established and explicitly cited: the equitable jurisdiction and statutory power to appoint receivers in partnership-type disputes (including joint ventures), as discussed in Tate v Barry (1928) 28 SR (NSW) 380 and in the textbook Meagher, Gummow & Lehane's Equity ([8]). The Civil Procedure Act s 56 case-management duty was also the statutory foundation for the Court's intervention.
This judgment does not create new legal principles. Instead it applies existing doctrines to particular interlocutory circumstances: a stalled joint venture, contested document authenticity, and a risk to asset equity. The effect of the decision is to reaffirm that where a joint venture resembles a partnership in its potential for mutual asset erosion, the Court may consider receivership among its remedies, while exercising s 56 case-management powers to require production and orderly progression before taking the heavy step of appointing a receiver.
After the decision, the practical posture is clearer for practitioners: in disputes where (a) there is a contested critical document and (b) assets are at risk through secured indebtedness and non-payment of rents, courts will expect prompt production, forensic examination where necessary, and attendance of lawyers familiar with the facts, and will not hesitate to flag receivership to protect equity. The judgment therefore reinforces procedural expectations rather than altering substantive law.
"This uncertainty cannot be allowed to continue in the interests of these parties, and in particular Mrs Dominello." [2]
"Because of these competing allegations, it is more than likely that expert evidence in relation to the handwriting on the original Asset Sale Agreement will be required." [11]
"The Court has broad powers under the Supreme Court Act 1970 and in equity. The jurisdiction to appoint a receiver to partnerships and by extension joint ventures is well established: Tate v Barry..." [8]
"If nothing is done, the equity that presently exists in these properties will be eroded..." [9]
Orders requiring production/subpoenas and attendance by knowledgeable counsel (Orders)
This decision is procedural and instructive. The specific factual triggers that make its directions and warnings applicable are:
Where these features exist, practitioners should anticipate stringent case-management, orders for immediate production of originals, short forensic timelines, and the Court's readiness to consider receivership to preserve the asset pool.
This judgment is an interlocutory case-management decision and does not report subsequent appellate or higher-court consideration within the text. The judgment treats authority such as Tate v Barry and leading equity texts as establishing the Court's jurisdiction to appoint receivers in partnership/joint venture disputes ([8]). The judgment itself does not report subsequent citations or treatments by other courts. Practitioners should therefore treat it as an application of established principles rather than an appellate precedent changing the law. For subsequent judicial treatment beyond this judgment, users must consult later reported decisions or databases.
Will a receiver ultimately be appointed in this case?
What will expert handwriting analysis reveal?
Will Logan Fox be joined or implicated?
Can the parties restructure the joint venture or sell the property without receiver intervention to preserve equity?
What sanctions or consequences will arise for non-compliance?
Practitioners handling similar disputes should ensure prompt, full and documented compliance with production obligations, secure custody of originals where signature authenticity is contested, ensure the presence at directions hearings of solicitors or counsel fully familiar with the case, and prepare for forensic evidence and the possibility of receivership if the parties cannot preserve asset value by agreement.
EX TEMPORE Judgment
Conclusion and Orders
Amendments 26 April 2017 - title 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: 26 April 2017
Booth
Cerreto & Ors
Interlocutory directions and orders: defendants ordered to produce accounts and documents (including notices to produce) by specified times, subpoenas to be complied with by Mr Stefano Laface, parties to supply copies of affidavits to the Court, solicitors/counsel familiar with the matter required to attend directions on 28 April 2017 at 2pm, copies of the judgment to be provided to all parties including ANZ and Westpac; matter listed for further directions; possibility of receiver appointment flagged.