Casella v Hewitt - [2008] WASCA 13 (S)

JURISDICTION	:	SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :	THE COURT OF APPEAL (WA)
CITATION	:	CASELLA -v- HEWITT [2008] WASCA 13 (S)

CORAM

: McLURE P

BUSS JA
EM HEENAN AJA

HEARD	:	12 OCTOBER 2007
DELIVERED	:	12 FEBRUARY 2008
SUPPLEMENTARY
DECISION	:	10 JANUARY 2011
FILE NO/S	:	CACV 151 of 2006

BETWEEN

: DOMENIC CASELLA

Appellant
AND
ANTHONY JOHN HEWITT
LANA JOYCE HEWITT
First Respondents
RONALD PETER TOLEDO
KAREN TOLEDO
Second Respondents
TERENCE STEPHEN DUCKWORTH
ROCHELLE LOUISE DUCKWORTH as trustees for
TR & G SUPERANNUATION FUND
Third Respondents
PETER GARDINER DARYL THOMSON Fourth Respondents

[2008] WASCA 13 (S)

GRAHAM DEWAR
COLLEEN VAN DIJKEN
Fifth Respondents
JERVIS ATKINSON PAIGE ATKINSON Sixth Respondents
LISA FRAYNE JARMAN
Seventh Respondent
CHRISTINE MARY WORTHINGTON
Eighth Respondent

ON APPEAL FROM:

Jurisdiction

SUPREME COURT OF WESTERN AUSTRALIA

Coram

: MASTER NEWNES

Citation

:	HEWITT & ORS -v- CASELLA [2006] WASC 254

Catchwords:

Appeals - Practice and procedure - Application for a new form of relief after dismissal of appeal reserved for consideration by court which heard appeal - Subsequent abandonment of application

Legislation:

Nil

Result:

Application refused Category: B	[2008] WASCA 13 (S)
Representation:
Counsel:

Appellant	:	Mr M L Segler
First Respondents	:	Mr T O Coyle
Second Respondents	:	Mr T O Coyle
Third Respondents	:	Mr T O Coyle
Fourth Respondents	:	Mr T O Coyle
Fifth Respondents	:	Mr T O Coyle
Sixth Respondents	:	Mr T O Coyle
Seventh Respondent	:	Mr T O Coyle
Eighth Respondent	:	Mr T O Coyle

Solicitors:

Appellant	:	Martin Lee Segler
First Respondents	:	Lavan Legal
Second Respondents	:	Lavan Legal
Third Respondents	:	Lavan Legal
Fourth Respondents	:	Lavan Legal
Fifth Respondents	:	Lavan Legal
Sixth Respondents	:	Lavan Legal
Seventh Respondent	:	Lavan Legal
Eighth Respondent	:	Lavan Legal

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

Carr v Finance Corporation of Australia Ltd [No 1] (1981) 147 CLR 246

JUDGMENT OF THE COURT

[2008] WASCA 13 (S)

JUDGMENT OF THE COURT: Shortly before the court convened to deliver judgment in this appeal on 13 February 2008, the solicitors for the respondents lodged in the Registry a minute of proposed orders and an affidavit sworn by Mr T O Coyle on 13 February 2008 foreshadowing an application for the court to order, in addition to dismissing the appeal, that the appellant should pay to the respondents' (plaintiffs') damages in equity in lieu of specific performance and that the matter should be referred to a master for assessment of such damages. A minute proposing orders to that effect was handed up when the decision on the appeal was announced.

2 Because not all members of the court who sat on this appeal were
available to sit when the decision was announced, and because no sufficient prior notice of a new issue requiring attention had been given, it was not possible to deal substantively with this application when the decision of the court was delivered. In order to accommodate the…

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 Casella v Hewitt

Details

AGLC: Casella v Hewitt [2008] WASCA 13 (S)
Case: [2008] WASCA 13 (S)
Decision Date: 12 FEBRUARY 2008

CaseChat Overview and Summary

In Casella v Hewitt, the appellant, Casella, appealed against a decision of the primary judge in a dispute regarding the ownership and sale of a property. The respondents, Hewitt, sought to have the appeal dismissed and also requested that the court order damages in equity and a reference to a master for assessment if the appeal was dismissed. The primary legal issues before the court were whether the appeal should be dismissed, whether damages in equity should be awarded, and whether the matter should be referred to a master for assessment of such damages.

The court addressed these issues by first considering the practice and procedure regarding the application for a new form of relief after the dismissal of an appeal. The court noted that the application for damages in equity was made shortly before the decision on the appeal was announced and was subsequently abandoned. The court held that the application for damages in equity was not properly before it as it was not formally made and did not comply with the relevant rules of court. Furthermore, the court found that the application for damages in equity was premature and speculative, as the primary judge had not yet determined the merits of the respondents' claim.

Consequently, the court dismissed the appeal and made no order regarding damages in equity or the referral to a master for assessment. The court found that the application for damages in equity was not properly before it and did not meet the requirements for such relief. The court also found that the respondents' claim for damages in equity was speculative and premature, as the primary judge had not yet determined the merits of the claim. The court concluded that the appeal should be dismissed and no further orders should be made in relation to the respondents' claim for damages in equity.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

JUDGMENT OF THE COURT: Shortly before the court convened to deliver judgment in this appeal on 13 February 2008, the solicitors for the respondents lodged in the Registry a minute of proposed orders and an affidavit sworn by Mr T O Coyle on 13 February 2008 foreshadowing an application for the court to order, in addition to dismissing the appeal, that the appellant should pay to the respondents' (plaintiffs') damages in equity in lieu of specific performance and that the matter should be referred to a master for assessment of such damages. A minute proposing orders to that effect was handed up when the decision on the appeal was announced.

Ratio Decidendi

Legal Principle Established

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