Cotellessa v Ameduri - [2012] WASCA 236

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: COTELLESSA -v- AMEDURI [2012] WASCA 236

CORAM: PULLIN JA

HEARD: 9 NOVEMBER 2012

DELIVERED : 9 NOVEMBER 2012

PUBLISHED : 19 NOVEMBER 2012

FILE NO/S: CACV 65 of 2012

BETWEEN: SERGIO COTELLESSA
Appellant
AND
JOHN AMEDURI
First Respondent
KAREN AMEDURI
Second Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :STONE DCJ
Citation  :AMEDURI -v- COTELLESSA [2012] WADC 86
File No  :CIV 3751 of 2009

Catchwords:

Practice and procedure - Application for a suspension order - Second application - Bankruptcy notice issued and served

Legislation:

Bankruptcy Act 1966 (Cth)
Civil Judgments Enforcement Act 2004 (WA)

Result:

Application refused

Category: B

Representation:

Counsel:

Appellant:     Mr P J Hannan
First Respondent           :     Mr N D C Dillon
Second Respondent      :     Mr N D C Dillon

Solicitors:

Appellant:     De Vita & Dixon
First Respondent           :     Andrew James Foster
Second Respondent      :     Andrew James Foster

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

Byron v Southern Star Group Pty Ltd (1997) 73 FCR 264
Clyne v Deputy Commissioner of Taxation (NSW) (No 3) (1982) 82 ATC 4484
Guss v Johnstone [2000] HCA 26
Kakavas v Paradise Enterprises Ltd (No 2) [2010] FCA 915
Re Bedford; Ex parte HC Sleigh (Qld) Pty Ltd (1967) 9 FLR 497
Re Nguyen; Ex parte Commissioner of Taxation (1995) 54 FCR 403
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Streimer v Tamas (1981) 37 ALR 211
Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168

PULLIN JA: The appellant applied for a suspension order under s 15 of the Civil Judgments Enforcement Act 2004 (WA). The application was dismissed with reasons to follow. These are the reasons.
This was the second application for a suspension order. The first application came before the court on 7 August 2012 and was dismissed on that day. It was dismissed for reasons published on 24 August 2012. See Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168. It was dismissed because the appellant did not demonstrate that the appeal would be rendered nugatory if a suspension order were not granted and because it was impossible to say, on the information provided, whether there was any reasonable prospect of the appeal succeeding. At the time of that hearing the respondents had issued a notice of bankruptcy but had not served it. The respondents refused to give an undertaking not to serve the notice of bankruptcy. The appellant was given liberty to apply to make a second application.
The principles which usually govern an application for a suspension order are set out in my earlier reasons [22].
The first question to consider is whether the appeal will be rendered nugatory or there will be practical difficulties for the appellant if a suspension order is not granted. The appellant submits that this will happen because the bankruptcy notice has now been served and if it is…

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.

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Details

Case: [2012] WASCA 236
Decision Date: 19 NOVEMBER 2012

CaseChat Overview and Summary

The case of Cotellessa v Ameduri involved a second application for a suspension order by the applicant, Cotellessa, following the issuance and service of a bankruptcy notice. The application was made in the Federal Circuit Court of Australia. Cotellessa sought to suspend the operation of the bankruptcy notice, which was served by Ameduri, in order to facilitate the resolution of the underlying dispute between the parties.

The court was required to determine whether the applicant's second application for a suspension order should be granted. The primary issue was whether the circumstances of the case warranted the suspension of the bankruptcy notice, considering the principles established in relevant case law and the specific facts presented.

The court considered the applicant's previous unsuccessful application for a suspension order and the subsequent issuance and service of the bankruptcy notice. It also evaluated the applicant's prospects of success in the underlying dispute and the potential prejudice to the applicant if the bankruptcy notice were to be enforced. After assessing these factors, the court concluded that the applicant had not demonstrated sufficient grounds to warrant the suspension of the bankruptcy notice. Consequently, the second application for a suspension order was dismissed.

No further orders were made by the court.

Orders