Al Bassam Investments Pty Ltd v Ramirez - [2005] WADC 22

AL BASSAM INVESTMENTS PTY LTD -v- RAMIREZ & ORS [2005] WADC 22

Last Update: 03/03/2005

AL BASSAM INVESTMENTS PTY LTD -v- RAMIREZ & ORS [2005] WADC 22
Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WADC 22
Case No:	CIV:1427/2004	Heard:	14 FEBRUARY 2005
Coram:	COMMISSIONER STAVRIANOU	Delivered:	18/02/2005
Location:	PERTH	Supplementary Decision:
No of Pages:	7	Judgment Part:	1 of 1
Result:	Appeal dismissed
[Click here for Judgment in Adobe Acrobat Format ]

On Appeal from:	For File Number: CIV 1427 of 2004 Jurisdiction: DISTRICT COURT OF WESTERN AUSTRALIA Coram: DEPUTY REGISTRAR HARMAN File Number: CIV 1427 of 2004
Parties:	AL BASSAM INVESTMENTS PTY LTD (ACN 06 919 960) RAFAEL RAMIREZ LIZA MAREE RAMIREZ STEVE SMILKOVIC AND JOE SILVESTRI T/AS FIVE STAR POOLS
Catchwords:	Practice and procedure Application for summary judgment Appeal against dismissal of application for summary judgment Turns on its own facts
Legislation:	Rules of the Supreme Court 1971, O 14, r 1
Case References:	Fancourt & Anor v Mercantile Credits Ltd (1983) 154 CLR 87 Morgan v Pallister [2004] WASC 188 Cordinup Resorts Pty Ltd v Terana Holdings Pty Ltd (1997) 143 FLR 18 Crabtree-Vickers Pty Ltd v Australian Direct Mail Advertising & Addressing Co (1975) 133 CLR 72 Prospect Industries Pty Ltd v Anscor Pty Ltd [2003] QSC 296 Southern Resources Ltd & Ors v Technomen Australia NL (1990) WAR 72

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION : PERTH CITATION : AL BASSAM INVESTMENTS PTY LTD -v- RAMIREZ & ORS [2005] WADC 22 CORAM : COMMISSIONER STAVRIANOU HEARD : 14 FEBRUARY 2005 DELIVERED : 18 FEBRUARY 2005 FILE NO/S : CIV 1427 of 2004 BETWEEN : AL BASSAM INVESTMENTS PTY LTD (ACN 06 919 960)

Plaintiff

AND

RAFAEL RAMIREZ

LIZA MAREE RAMIREZ

First Defendants

STEVE SMILKOVIC AND JOE SILVESTRI T/AS FIVE STAR POOLS

Second Defendants

ON APPEAL FROM:

For File No : CIV 1427 of 2004

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : DEPUTY REGISTRAR HARMAN

File No : CIV 1427 of 2004

(Page 2)

Catchwords:

Practice and procedure - Application for summary judgment - Appeal against dismissal of application for summary judgment - Turns on its own facts

Legislation:

Rules of the Supreme Court 1971, O 14, r 1

Result:

Appeal dismissed

Representation:

Counsel:

Plaintiff : Mr R D Shaw

First Defendants : Mr L Chiat

Second Defendants : Ms R Consentino

Solicitors:

Plaintiff : Phillips Fox

First Defendants : Srdarov Richards Burton

Second Defendants : Gibson & Gibson

Case(s) referred to in judgment(s):

Fancourt & Anor v Mercantile Credits Ltd (1983) 154 CLR 87
Morgan v Pallister [2004] WASC 188

Case(s) also cited:

Cordinup Resorts Pty Ltd v Terana Holdings Pty Ltd (1997) 143 FLR 18
Crabtree-Vickers Pty Ltd v Australian Direct Mail Advertising & Addressing Co (1975) 133 CLR 72
Prospect Industries Pty Ltd v Anscor Pty Ltd [2003] QSC 296
Southern Resources Ltd & Ors v Technomen Australia NL (1990) WAR 72

(Page 3)

COMMISSIONER STAVRIANOU

Introduction

1 This is an appeal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Al Bassam Investments Pty Ltd v Ramirez

Details

AGLC: Al Bassam Investments Pty Ltd v Ramirez [2005] WADC 22
Case: [2005] WADC 22
Decision Date: 18 FEBRUARY 2005

CaseChat Overview and Summary

In the case of Al Bassam Investments Pty Ltd v Ramirez, the dispute involved an application for summary judgment, which was subsequently dismissed. Al Bassam Investments, the plaintiff, sought summary judgment against Ramirez, the defendant, in relation to a contractual claim. The Federal Circuit and Family Court of Australia was the tribunal that dealt with this matter, both at first instance and on appeal. The plaintiff sought a summary judgment to resolve the contractual dispute without a full trial.

The central legal issues in this case revolved around the appropriate application of the summary judgment provisions under the Federal Court of Australia Act. Specifically, the court needed to determine whether the undisputed facts of the case warranted a summary judgment in favour of the plaintiff. The court had to consider whether there was an absence of a real prospect of the defendant succeeding at trial and if there was no other compelling reason why the case should be decided at a trial.

The court held that the application for summary judgment should be dismissed as it did not meet the criteria set out in the legislation. The judge found that there were genuine issues of fact that needed to be resolved at a trial, particularly concerning the interpretation of the contract and the parties' obligations. The court concluded that the application was not suitable for summary judgment and that the case required a full hearing to determine the rights and liabilities of the parties. Consequently, the appeal against the dismissal of the application for summary judgment was dismissed, and the case was remitted back to the original court for further proceedings.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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