Arcidiacono v Commissioner for Act Revenue; Canberra Cleaners Pty Ltd v Commissioner for Act Revenue

[2018] ACTCA 56

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

Arcidiacono v Commissioner for ACT Revenue; Canberra Cleaners Pty Ltd v Commissioner for ACT Revenue

Citation:

[2018] ACTCA 56

Hearing Date:

On the papers

DecisionDate:

28 November 2018

Before:

Burns, Mossop and Charlesworth JJ

Decision:

See [3]

Catchwords:

APPEAL – Appeal from ACT Supreme Court – appellants’ proposed orders – need to regularise proceedings – whether to join the estate of the deceased as a party

Parties:

Phillip Arcidiacono (First Appellant in ACTCA 41 of 2018)

Sue Price (Second Appellant in ACTCA 41 of 2018)

Jocelyn Katavic (Fourth Appellant in ACTCA 41 of 2018)

Canberra Cleaners Pty Ltd ACN 142575095 (First Appellant in ACTCA 42 of 2018)

Phillip Arcidiacono trading as Rose Cleaning Service (Second Appellant in ACTCA 42 of 2018)

Commissioner for ACT Revenue (Respondent in ACTCA 41 and 42 of 2018)

Representation:

Counsel

Mr D McGovern SC with Mr A Russoniello (Second and Fourth Appellants in ACTCA 41 of 2018 and First Appellant in ACTCA 42 of 2018)

Mr P Walker SC with Mr WDB Buckland (Respondent)

Solicitors

McEvoy Legal (Second and Fourth Appellants in ACTCA 41 of 2018 and First Appellant in ACTCA 42 of 2018)

ACT Government Solicitor (Respondent)

File Numbers:

ACTCA 41 of 2018; ACTCA 42 of 2018

Decision under appeal: 

Court/Tribunal:             ACT Supreme Court

Before:  Associate Justice McWilliam

Date of Decision:         3 August 2018

Case Title:  Canberra Cleaners Pty Ltd v Commissioner for ACT Revenue

Citation: [2018] ACTSC 208

THE COURT:

1. The hearing of the appeals in matters ACTCA 41 and 42 of 2018 took place on 7 November 2018, at which time the Court reserved its decision. Prior to 7 November 2018 one of the appellants in each appeal, Phillip Arcidiacono, died. During the course of the hearing we raised with counsel the need to regularise the proceedings by joining the estate of the deceased as a party.

1. As we understand it, no application for probate has been made with regard to the deceased estate. The Court has been informed by counsel for the appellants that Sue Price is the executor named in the will of the deceased. An application has been made to substitute Ms Price in her capacity as executor named in the will of the deceased for the deceased as an appellant in each appeal.

1. Having received written submissions from the parties, the Court considers it desirable to make the following orders to enable the Court to adjudicate effectively and completely on all issues in dispute in the proceedings:

(a)that Sue Price with her consent be substituted for Phillip Arcidiacono in appeals ACTCA 41 and 42 of 2018, on the proviso that any adverse or favourable order of the Court, including as to costs, be against the estate of Phillip Arcidiacono only and not against Sue Price in her personal capacity.

I certify that the preceding three [3] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Justices Burns, Mossop and Charlesworth.

Associate:

Date: 28 November 2018