Magenta Nominees Pty Ltd v Bonini

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



SUPREME COURT OF WESTERN AUSTRALIACitation No:[1999] WASC 88
Case No:CIV:1603/199528 APRIL 1999
Coram:WHEELER J2/07/99
30Judgment Part:1 of 1
Result: Plaintiff's action dismissed and defendants by counterclaim defence to counterclaim struck out pursuant to O 26 r 15
PDF Version
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
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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

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

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