ELOVALIS -v- ELOVALIS [2008] WASCA 141 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WASCA 141 (S)
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:38/2007	Heard:	6 MARCH 2008
Coram:	MARTIN CJ BUSS JA NEWNES AJA	Delivered:	4/07/08
Supplementary Delivered:	19/09/08
No of pages:	7	Judgment Part:	1 of 1
Result:	Judgment entered in favour of the second respondent should not be allowed to stand Costs of the appeal follow the event
Category:	B
PDF Version

Parties:	HELEN ELOVALIS VICKI MICHELE TOT ANASTASIOS VASILIOS ELOVALIS as Trustee of Mike's Gardening Trust CHRISTOS VASILIOS ELOVALIS
Catchwords:	Trusts Appointor joined as defendant Necessary to ensure that all matters in dispute are effectually and completely determined Rules of the Supreme Court 1971 (WA), O 18 r 6(2) Costs Turns on own facts
Legislation:	Rules of the Supreme Court 1971 (WA), O 18, r 4, r 6
Case References:	APT Finance Pty Ltd v Bajada [2008] WASCA 73 Bridge Shipping Pty Ltd v Grond Shipping SA (1991) 173 CLR 231 Elovalis v Elovalis [2008] WASCA 141 McInnes v Wincarribee Shire Council (1987) 10 NSWLR 660 Qantas Airways Ltd v AF Little Pty Ltd [1981] 2 NSWLR 34 Vagliriello v Vagliriello [2003] WASC 61 Woodlings v Stevenson [2001] WASC 174; (2001) 24 WAR 221

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : ELOVALIS -v- ELOVALIS [2008] WASCA 141 (S) CORAM : MARTIN CJ

BUSS JA

NEWNES AJA

HEARD : 6 MARCH 2008 DELIVERED : 4 JULY 2008 SUPPLEMENTARY
DECISION : 19 SEPTEMBER 2008 FILE NO/S : CACV 38 of 2007 BETWEEN : HELEN ELOVALIS

VICKI MICHELE TOT

Appellants

AND

ANASTASIOS VASILIOS ELOVALIS as Trustee of Mike's Gardening Trust

First Respondent

CHRISTOS VASILIOS ELOVALIS

Second Respondent

(Page 2)

ON APPEAL FROM:

For File No : CACV 38 of 2007

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : MASTER SANDERSON

Citation : ELOVALIS & ANOR -v- ANASTASIOS VASILIOS ELOVALIS AS TRUSTEE OF MIKE'S GARDENING TRUST & ANOR [2006] WASC 291

File No : CIV 2056 of 2004

Catchwords:

Trusts - Appointor joined as defendant - Necessary to ensure that all matters in dispute are effectually and completely determined - Rules of the Supreme Court 1971 (WA), O 18 r 6(2)

Costs - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 18, r 4, r 6

Result:

Judgment entered in favour of the second respondent should not be allowed to stand

Costs of the appeal follow the event

Category: B

(Page 3)

Representation:

Counsel:

Appellants : Mr S Penglis

First Respondent : Mr T Lampropoulos SC

Second Respondent : Mr T Lampropoulos SC

Solicitors:

Appellants : Freehills

First Respondent : Ilberys Lawyers

Second Respondent : Ilberys Lawyers

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

APT Finance Pty Ltd v Bajada [2008] WASCA 73
Bridge Shipping Pty Ltd v Grond Shipping SA (1991) 173 CLR 231
Elovalis v Elovalis [2008] WASCA 141
McInnes v Wincarribee Shire Council (1987) 10 NSWLR 660

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 Elovalis v Elovalis

Details

AGLC: Elovalis v Elovalis [2008] WASCA 141 (S)
Case: [2008] WASCA 141 (S)
Decision Date

CaseChat Overview and Summary

In the matter of Elovalis v Elovalis, the Court of Appeal in Western Australia was asked to decide on the appeal made by Helen Elovalis and Vicki Michele Totan against the orders made by the Master in the Supreme Court of Western Australia. The appeal focused on the decision to enter judgment in favour of Christos Vasilos Elovalis, the second respondent, and the costs associated with the appeal. The first issue was whether the judgment entered in favour of the second respondent should be allowed to stand, and the second issue was the appropriate orders to be made in relation to the costs of the appeal. The court found that the presence of the second respondent was necessary to ensure that all matters in dispute were effectually and completely determined, and therefore, the judgment entered in his favour should not be allowed to stand. Consequently, the appeal was allowed, and the respondents were ordered to repay all amounts paid to them pursuant to costs orders made by the Master, including interest at 6% per annum. In relation to the costs of the appeal, the court found that costs should follow the event, and the respondents should pay the appellants' costs of the appeal to be taxed.

Orders