Leume Pty Ltd v Chianti Pty Ltd - [2005] WADC 212

LEUME PTY LTD -v- CHIANTI PTY LTD [2005] WADC 212

Last Update: 10/11/2005

LEUME PTY LTD -v- CHIANTI PTY LTD [2005] WADC 212
Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WADC 212
Case No:	CIV:91/2005	Heard:	16 & 24 AUGUST 2005
Coram:	REGISTRAR KINGSLEY	Delivered:	09/11/2005
Location:	PERTH	Supplementary Decision:
No of Pages:	9	Judgment Part:	1 of 1
Result:	Application dismissed
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	LEUME PTY LTD CHIANTI PTY LTD
Catchwords:	Practice Application under O 14 Rules of the Supreme Court Jurisdiction issue Claim against trustee of trust
Legislation:	Rules of the Supreme Court 1971, O 14, O 16 The Trustees Act 1978
Case References:	Burns Philp Trustee Co. Ltd v Viney [1981] 2 NSWLR 216 Inland Revenue Commissioners (NZ) v Ward (1969) ATC 6050 Wendt and Ors v Orr and Anor [2004] WASC 28 Casella v Costin Pty Ltd, unreported; SCt of WA; Library No 5416; 22 June 1984 Commercial Developments Pty Ltd v Mercantile Mutual Insurance Ltd (1991) 5 WAR 208 Cordinup Resorts Pty Ltd v Terana Holdings Pty Ltd (1997) 143 FLR 18 Esanda Finance Corporation Ltd v Snowlake Holdings & Ors, unreported; SCt of WA; Library No 920586; 30 October 1992 Fancourt v Mercantile Credit Ltd (1983) 154 CLR 87 Fountain Selected Meat (Sales) Pty Ltd v International Produce Merchants Ltd (1988) 81 ALR 397 Geraldton Building Co Pty Ltd v Christmas Island Resort Pty Ltd (1992) 11 WAR 40 Jacka Nominees Pty Ltd (in liquidation) & Ors v Edwards Karwacki Smith & Co Pty Ltd & Ors, unreported; SCt Court of WA; Library No 920512; 12 October 1992 Jones v Moylan (2000) 23 WAR 65 Morgan & Son Ltd v S Martin Johnson & Company [1949] 1 KB 107 Morgan v Pallister [2004] WASC 188 O'Dare v Commissioner of Police, unreported; SCt of WA; Library No 940048; 17 December 1993 Perth Pallets v QA Pallets & Packaging Pty Ltd (2002) 29 SR (WA) 275 Southern Resources Ltd v Technomin Australia NL [1990] WAR 72 Thompson v White [1970] 3 All ER 678 Re Vestey's Settlement; Lloyds Bank Ltd v O'Meara [1950] 2 All ER 891

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION : PERTH CITATION : LEUME PTY LTD -v- CHIANTI PTY LTD [2005] WADC 212 CORAM : REGISTRAR KINGSLEY HEARD : 16 & 24 AUGUST 2005 DELIVERED : 9 NOVEMBER 2005 FILE NO/S : CIV 91 of 2005 BETWEEN : LEUME PTY LTD

Plaintiff

AND

CHIANTI PTY LTD

Defendant

Catchwords:

Practice - Application under O 14 Rules of the Supreme Court - Jurisdiction issue - Claim against trustee of trust

Legislation:

Rules of the Supreme Court 1971, O 14, O 16
The Trustees Act 1978

Result:

Application dismissed

(Page 2)

Representation:

Counsel:

Plaintiff : Mr R C Ioppolo

Defendant : Ms R Cosentino

Solicitors:

Plaintiff : Wojtowicz Kelly

Defendant : Gibson & Gibson

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

Burns Philp Trustee Co. Ltd v Viney [1981] 2 NSWLR 216
Inland…

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.

Keep reading for free

Create a free CaseChat account to read Leume Pty Ltd v Chianti Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2005] WADC 212
Decision Date: 9 NOVEMBER 2005

CaseChat Overview and Summary

Leume Pty Ltd brought a practice application against Chianti Pty Ltd in the Supreme Court, seeking clarification on the proper procedure for serving a claim against the trustee of a trust. The application arose from an earlier proceeding where Leume sought to enforce a judgment against the trustee of a trust, who was also a director of Chianti. Chianti argued that it was not the appropriate party to serve the claim against the trustee and sought guidance on the correct procedure.

The central issue before the court was whether the plaintiff should serve the claim against the trustee directly or through the company, and whether serving the claim on Chianti was sufficient. The court needed to interpret the relevant procedural rules and determine if the service was valid.

The court held that the plaintiff should have served the claim directly on the trustee and not on Chianti. The court found that serving the claim on Chianti did not meet the requirements of the procedural rules. Consequently, the court dismissed the application and ruled that the plaintiff had not followed the correct procedure for serving the claim against the trustee. As a result, the application was dismissed, and no further orders were made.

Orders

Orders of the court

Application dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.