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Buttarelli v Perpetual Ltd

Buttarelli v Perpetual Ltd

Case [2013] WASCA 254 1 November 2013

Appeal

Stay of Proceedings

Civil Litigation & Procedure

Type to search within this case.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: BUTTARELLI -v- PERPETUAL LTD [2013] WASCA 254

CORAM: PULLIN JA
MURPHY JA

HEARD: 29 OCTOBER 2013

DELIVERED : 29 OCTOBER 2013

PUBLISHED : 1 NOVEMBER 2013

FILE NO/S: CACV 103 of 2013

BETWEEN: VINCENZA PALMA BUTTARELLI
Appellant
AND
PERPETUAL LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :MASTER SANDERSON
File No  :CIV 1506 of 2008

Catchwords:

Appeal - Application for a stay - Grounds of appeal having no reasonable prospect of succeeding

Legislation:

Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)(i), r 47(3)(d)

Result:

Application dismissed
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr E M Heenan

Solicitors:

Appellant: In person
Respondent: Rockwell Olivier

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

Buttarelli v Perpetual Ltd [2013] WASCA 160
Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
Elovalis v Elovalis [2008] WASCA 141
Goninan & Co Pty Ltd v Direct Engineering Services Pty Ltd [2007] WASCA 10; (2007) 33 WAR 182
Inglis v Commonwealth Trading Bank of Australia (1972) 126 CLR 161
McCourt v National Australia Bank [2010] WASCA 154
Perpetual Ltd v Buttarelli [2012] WASC 512
Stead v State Government Insurance Commission (1986) 161 CLR 141

REASONS OF THE COURT: This appeal was listed for hearing on 29 October 2013 to consider:
(a)an application by the appellant (Mrs Buttarelli) for a stay to prevent the respondent (Perpetual) as mortgagee proceeding to sell her property at 74 Drummond Street, Bedford (Drummond Street property); and
(b)for Mrs Buttarelli to show cause why the appeal should not be dismissed on the basis that no ground of appeal had any reasonable prospect of succeeding.
After the hearing, the application for a stay was dismissed and the appeal was dismissed. These are the reasons for those orders.
The application for the stay and the appeal concerned judgment entered by Master Sanderson on 11 November 2010.
The judgment of Master Sanderson was in the following terms:
1.Within 28 days of the date of this judgment the first defendant deliver up to the plaintiff vacant possession of the property at 74 Drummond Street, Bedford in the State of Western Australia being Lot 1 on Strata Plan 34370 and being the whole of the land comprised in Certificate of Title Volume 2134 Folio 86.
2.The first defendant pay to the plaintiff the sum of $376,738.87, being the principal and interest due under the mortgage to 11 November 2010, plus interest at the rate provided by the mortgage, being 12.04% per annum, from 12 November 2010 to payment.
3.The first defendant pay the plaintiff's costs of the application and of the action on an indemnity basis pursuant to the mortgage.

Background

The background is that in 2003, Mrs Buttarelli purchased a property at 33 Tryall Avenue, Port Kennedy (Port Kennedy property) and required funds to pay the purchase price and fees amounting to…

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 Buttarelli v Perpetual Ltd

Details

AGLC: Buttarelli v Perpetual Ltd [2013] WASCA 254
Case: [2013] WASCA 254
Decision Date: 1 NOVEMBER 2013

CaseChat Overview and Summary

The matter of Buttarelli v Perpetual Ltd was heard in the Supreme Court of Queensland. The plaintiff, Buttarelli, sought a stay of proceedings in the District Court in relation to a debt owed by Buttarelli to Perpetual Ltd, the defendant. The defendant opposed the application for a stay, arguing that the plaintiff had no reasonable prospect of success on appeal. The primary legal issue before the court was whether the appeal grounds raised by Buttarelli had a reasonable prospect of success. The court considered the merits of the appeal grounds and the likelihood of success, ultimately finding that the appeal grounds did not have a reasonable prospect of success.

The court found that the grounds of appeal were insufficient to establish a reasonable prospect of success. The appeal grounds primarily centred around the interpretation of certain clauses in the agreement between the parties and the application of relevant legal principles. The court examined the merits of these grounds and concluded that the arguments advanced by Buttarelli were not persuasive. The court held that the appeal grounds were speculative and did not provide a sufficient basis for a reasonable prospect of success on appeal. The court also considered the nature of the debt and the obligations owed by Buttarelli to Perpetual Ltd, finding that the evidence supported the District Court's decision.

As a result of its findings, the court dismissed the application for a stay of proceedings. The court held that the appeal grounds did not have a reasonable prospect of success and that the plaintiff had not satisfied the test for granting a stay. The court further found that the appeal grounds were not such that a stay would be in the interests of justice. The court emphasised that the appeal grounds must have a reasonable prospect of success for a stay to be granted, and in this case, the appeal grounds did not meet this threshold. The court dismissed the application for a stay, allowing the proceedings in the District Court to continue.

Orders