Cumace v Ioppolo - [2022] WASCA 171

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   CUMACE -v- IOPPOLO [2022] WASCA 171
CORAM:   QUINLAN CJ
VAUGHAN JA
HALL JA

HEARD:   17 NOVEMBER 2022
DELIVERED          :   17 NOVEMBER 2022
PUBLISHED           :   20 DECEMBER 2022
FILE NO/S:   CACV 91 of 2021
BETWEEN:   ANTONIO STEFANO CUMACE
Appellant
AND
LEO ANTONINO IOPPOLO
Respondent

FILE NO/S: CACV 92 of 2021
BETWEEN: ANTONIO STEFANO CUMACE
Appellant
AND
PIERO CAMPEOTTO as trustee for THE CAMPEOTTO FAMILY TRUST
First Respondent
LEO ANTONINO IOPPOLO as trustee for THE ANNIMATT FAMILY TRUST
Second Respondent
ANTHONY PAOLINO
Third Respondent
LINA PAOLINO
Fourth Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   LONSDALE DCJ
Citation: IOPPOLO -v- CUMACE [2021] WADC 86
File Number            :   CIV 4574 of 2020, CIV 4578 of 2020

Catchwords:

Contract - Whether primary judge erred in proper construction of agreements - Meaning of 'hereby guarantees' - Turns on own facts

Practice and procedure - Appeals against dismissal of applications to set aside default judgments - Whether primary judge erred in finding appellant had no reasonably arguable defence - Turns on own facts

Legislation:

Nil

Result:

Appeals dismissed

Category: B

Representation:

CACV 91 of 2021

Counsel:

Appellant	:	A P Rumsley
Respondent	:	B Grubb

Solicitors:

Appellant	:	Westmont Legal
Respondent	:	Tudori Hager Grubb

CACV 92 of 2021

Counsel:

Appellant	:	A P Rumsley
First Respondent	:	B Grubb
Second Respondent	:	B Grubb
Third Respondent	:	B Grubb
Fourth Respondent	:	B Grubb

Solicitors:

Appellant	:	Westmont Legal
First Respondent	:	Tudori Hager Grubb
Second Respondent	:	Tudori Hager Grubb
Third Respondent	:	Tudori Hager Grubb
Fourth Respondent	:	Tudori Hager Grubb

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

Black Box Control Pty Ltd v TerraVision Pty Ltd [2016] WASCA 219
CA & Associates Pty Ltd v Fini Group Pty Ltd [2020] WASCA 31
Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640
Ioppolo v Cumace [2021] WADC 86
JKC Australia LNG Pty Ltd v CH2M Hill Companies Ltd [No 2] [2020] WASCA 112
Moschi v Lep Air Services Ltd [1973] AC 331
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 256 CLR 104
TSW Analytical Pty Ltd v The University of Western Australia [2017] WASCA 67

REASONS OF THE COURT:

Overview

These reasons concern two appeals against orders made by a judge of the District Court of Western Australia (Lonsdale DCJ) dismissing appeals against decisions of a deputy registrar of that court (Hewitt DR) to dismiss applications to set aside default judgments obtained by the respondents against the appellant. The primary judge gave written reasons for dismissing the intermediate appeals against the decisions of the deputy registrar.[1]
[1] Ioppolo v Cumace [2021] WADC 86 (primary reasons).
The appeals in this court were heard together. The appeals concerned like legal instruments. At all times, both in the two primary proceedings and in the appeals, the parties proceeded on the basis that…

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 Cumace v Ioppolo

Details

AGLC: Cumace v Ioppolo [2022] WASCA 171
Case: [2022] WASCA 171
Decision Date

CaseChat Overview and Summary

The case of Cumace v Ioppolo involved an appeal by the appellant against default judgments entered in favour of the respondents. The primary issue was the interpretation of the legal relationship between the parties as defined by the Personal Property Securities (PPS) agreements, which were central to the dispute. The court was tasked with determining whether the appeals, which sought to set aside the default judgments, should be decided in an interlocutory context.

The legal issues focused on the principles of contractual construction and whether it was appropriate to decide them in an interlocutory context, given that the appeals aimed to overturn default judgments. The appellant argued that the construction of the PPS agreements should be considered in the interlocutory context due to the simplicity of the documents and the absence of any material factual dispute or extrinsic evidence. The court needed to decide whether the issue of contractual construction could be adequately resolved without a full trial.

The court reasoned that while it is generally not standard practice to determine complex questions of law in an interlocutory context, there are exceptions. In this case, the simplicity of the documents and the lack of factual disputes or extrinsic evidence made it appropriate to consider the contractual construction issue at this stage. The court found that only one reasonable interpretation of the PPS agreements was possible, making it suitable to address the matter without proceeding to a full trial. Consequently, the court determined the proper construction of the agreements in the interlocutory context.

The court's final orders were not explicitly detailed in the provided excerpt, but the reasoning suggests that the court found in favour of the respondents, upholding the default judgments based on the proper construction of the PPS agreements.

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

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Ratio Decidendi

Legal Principle Established

The appellant's written submissions addressed the applicable principles of contractual construction.[27] It is not necessary to rehearse those principles. The general principles to be applied in construing commercial instruments are well established and have been referred to in numerous decisions of this court.[28] In broad summary, the text used is to be interpreted objectively by considering what the language adopted would mean to a reasonable person in the position of the parties. The text used is to be considered in its relevant context, including the surrounding circumstances known to the parties at the time of the transaction, and having due regard to the purpose or object of the transaction as revealed by the text and context. The instrument must be read as a whole.[27] Appellant's submissions pars 23 - 24 WAB 14.[28] See in particular Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640 [35]; Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 256 CLR 104 [46] - [52]. In this court see eg: Black Box Control Pty Ltd v TerraVision Pty Ltd [2016] WASCA 219 [42]; CA & Associates Pty Ltd v Fini Group Pty Ltd [2020] WASCA 31 [51] - [54]; JKC Australia LNG Pty Ltd v CH2M Hill Companies Ltd [No 2] [2020] WASCA 112 [67] ‑ [72]. The present appeals are not primarily concerned with the proper construction of a particular word or term of the PPIs. The appellant accepted that the appeals raised a characterisation issue. The question raised by grounds 1 and 2 requires characterisation of the legal relationship between the parties by reference to the PPIs, objectively construed in context having due regard to the purpose and object of the transactions.[29][29] Appeal ts 10. In that respect the question of contractual construction raised by grounds 1 and 2 arises in an interlocutory context - the appellant seeks to set aside default judgments entered in favour of the respondents. The proper construction of a legal instrument is a question of law. While it is not the norm, there are cases where the court considers it appropriate to determine questions of law in an interlocutory context. For example, on an application under O 16 of the Rules of the Supreme Court 1971 (WA) there may be summary judgment for a defendant if the facts are undisputed and the law is clear. In general, however, an interlocutory context is not the occasion to dispose of difficult or substantial questions of law which cannot be determined without full argument. It will usually be appropriate to leave the determination of such questions for trial. The appellant did not suggest that the interlocutory context in which the appeals arose had any bearing on how this court should approach the constructional task presented by grounds 1 and 2. The PPIs are simple one-page documents. There was no material dispute between the parties as to the relevant factual context. Nor was it suggested that there was any further extrinsic evidence which might bear on the proper construction of the PPIs. The question of construction was fully argued by reference to the PPIs and the agreed factual context. In all the circumstances this was an occasion where it was appropriate to consider and determine the proper construction of the PPIs. That was all the more so since, on examination, only one construction was reasonably open.