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Magenta Nominees Pty Ltd v Bonini

Magenta Nominees Pty Ltd v Bonini

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Case Copied 2 July 1999 47 min read

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MAGENTA NOMINEES PTY LTD -v- BONINI & ORS [1999] WASC 88

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[1999] WASC 88
Case No:	CIV:1603/1995	Heard:	28 APRIL 1999
Coram:	WHEELER J	Delivered:	2/07/99
No of pages:	30	Judgment Part:	1 of 1
Result:	Plaintiff's action dismissed and defendants by counterclaim defence to counterclaim struck out pursuant to O 26 r 15
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Parties:	MAGENTA NOMINEES PTY LTD GIANCARLO BONINI ANGELINA BONINI ANTIONETTA GRASSI CESARIO GRASSI MARCO COMITO STEPHEN DOMINIC BONINI ELSA BONINI COSIMO VINCENZO COMITO FRANCESCA COMITO
Catchwords:	Practice and procedure Discovery Springing order for discovery "Failure" to give discovery Particulars (failure to supply) Expert report Striking out claim for failure to comply with court orders
Legislation:	Rules of the Supreme Court, O 26 r 15
Case References:	Arbuthnot Bank v Trafalgar Holdings [1898] 2 All ER 181 Birkett v James [1978] AC 297 Burkett v Miller, unreported; FCt SCt of WA; Library No 2131; 1997 Department of Transport v Chris Smaller (Transport) Ltd [1989] 1 AC 1197 Freeman v Rabinov [1981] VR 539 Hartizen Nominees Pty Ltd v Rydge (1992) 29 NSWLR 405 In Re Londonderry's Settlement [1965] 1 Ch 918 J & J Products (a firm) v Ken Gray & Co (a firm), unreported; FCt SCt of WA; Library No 960219; 24 April 1996 Mercantile Mutual Holdings Ltd v International Reinsurance Pty Ltd (unreported; SCt of NSW 14 August 1989 Butterworth's unreported judgments BC 8901849) Reiss v Woolf [1952] 2 QB 557 Republic of Liberia v Roye [1876] 1 App Cas 139 Southern Cross Oil v Fire and All Risks Insurance Co Ltd (1986) 7 NSWLR 319 Turner v Davies [1981] 2 NSWLR 324 Beecham Group Ltd v Bristol-Myers Co [1979] VR 273 Hamersley Iron Pty Ltd v Metal and Engineering Workers' Union - Western Australia & Ors, unreported; SCt of WA; Library No 970184; 24 April 1997 Hughes v Gales (1995) 14 WAR 434 Ken Gray & Co (A Firm) v J & J Products (A Firm), unreported; SCt of WA (Master Adams); Library No 950106; 17 March 1995 Re Jokai Tea Holdings Ltd (1992) 1 WLR 1196

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : MAGENTA NOMINEES PTY LTD -v- BONINI & ORS [1999] WASC 88 CORAM : WHEELER J HEARD : 28 APRIL 1999 DELIVERED : 2 JULY 1999 FILE NO/S : CIV 1603 of 1995
CIV 2199 of 1995
CIV 2200 of 1995
CIV 2202 of 1995
CIV 2203 of 1995
CIV 2204 of 1995
CIV 2205 of 1995
CIV 1304 of 1996
CIV 1039 of 1997
(Consolidated by Order dated 18 February 1997) BETWEEN : MAGENTA NOMINEES PTY LTD

Plaintiff

AND

GIANCARLO BONINI

ANGELINA BONINI

First Defendants

ANTIONETTA GRASSI

CESARIO GRASSI

Second Defendants

MARCO COMITO

Third Defendant

STEPHEN DOMINIC BONINI

Fourth Defendant

(Page 2)

ELSA BONINI

Fifth Defendant

COSIMO VINCENZO COMITO

FRANCESCA COMITO

Sixth Defendants

(BY ORIGINAL ACTION)

GIANCARLO BONINI

ANGELINA BONINI

ANTIONETTA GRASSI

CESARIO GRASSI

MARCO COMITO

STEPHEN DOMINIC BONINI

ELSA GORNALL

COSIMO VINCENZO COMITO

FRANCESCA COMITO

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: [1999] WASC 88
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Western Australia, Magenta Nominees Pty Ltd initiated proceedings against several defendants, including Giancarlo Bonini and others, alleging breaches of trust and misrepresentations regarding a unit trust. The defendants counterclaimed, asserting mismanagement and excessive fees by Magenta. The case was marked by significant delays and non-compliance with court orders regarding discovery, particulars, and expert reports. Bonini and others filed a chamber summons seeking the dismissal of Magenta's claims and the striking out of the counterclaim defence, arguing that Magenta's conduct amounted to contumacious disregard for court orders. The court found that Magenta had been persistently dilatory in providing discovery, with the affidavits of discovery being incomplete and inadequate. Despite the affidavits being in proper form, the court concluded that the discovery did not comply with the orders, and the springing order was not self-executing. The court also noted significant delays in providing particulars and a defective expert report, which was incomplete and made no comment on available tax returns. The defendants' conduct was deemed to be a reckless disregard for their obligations, amounting to a calculated attempt to avoid disclosure and hinder the defendants' preparation for trial. The court found that the orders of the court must be obeyed, and a point is reached where a litigant who deliberately disobeys an order will not be allowed to proceed. Consequently, the court granted the defendants' summons, dismissing Magenta's action and striking out the defence to the counterclaim.

Orders