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Mercanti v Mercanti

Mercanti v Mercanti

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Case Copied 5 January 2017 9 min read

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HIGH COURT OF AUSTRALIA
KIEFEL J
JASON DEAN MERCANTI APPLICANT
AND
TYRONE KANE MERCANTI & ORS RESPONDENTS
Mercanti v Mercanti
[2017] HCA 1
5 January 2017
P63/2016
ORDER
1.The First Respondent be restrained from exercising or purporting to exercise any powers as Appointor or Guardian of the M Mercanti Family Trust (MMF Trust) until the determination of the application for special leave to appeal to the High Court and any appeal, should leave be granted, or until further order.
2.The Second Respondent be restrained from acting or purporting to act as Trustee of the MMF Trust including (but not limited to) restraining it from dealing or purporting to deal with any of the assets of the MMF Trust or incurring or purporting to incur any liabilities on behalf of the MMF Trust, until the determination of the application for special leave to appeal to the High Court and any appeal should special leave be granted, or until further order.
3.Each of the First and Second Respondents have liberty to apply on 48 hours' notice to the Applicant to dissolve or vary these injunctions.
4.The costs of this application be costs in the cause.
5.The Applicant have leave to file an amended application for special leave on or before 4.00 pm on Friday 6 January 2017.

6.The First and Second Respondents have leave to file an amended response within 21 days after service of the amended application for special leave.

Representation
S Penglis for the applicant (instructed by Fletcher Law)
A Metaxas for the first and second respondents (instructed by Metaxas and Hager Lawyers)
No appearance for the third, fourth and fifth respondents
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

KIEFEL J. An application for special leave to appeal in this matter is brought by Jason Mercanti. It concerns a discretionary trust ("the MMF Trust") of which Slondia Nominees Pty Ltd ("Slondia") (the third respondent) was the first Trustee. The applicant's brother Tyrone Mercanti (the first respondent) and the applicant's parents, Michael Mercanti (the fifth respondent) and Sybil (or Yvonne) Mercanti, are directors of Slondia. Michael Mercanti was also the initial Guardian and Appointor of the MMF Trust. The assets of the MMF Trust included a retail business established by Michael Mercanti.
In 2004, a Deed of Variation of the MMF Trust Deed was executed by Slondia in its capacity as Trustee, substituting Tyrone Mercanti as the new Guardian and Appointor. The trial judge, Le Miere J, found[1] as a fact that the applicant's parents "intended that the business [owned by the MMF Trust] should be Tyrone's" and that they wanted it to be "an advance on [his] inheritance". They intended to make provision for their other sons in their wills[2].
[1]Mercanti v Mercanti [2015] WASC 297 at [145], [179].
[2]Mercanti v Mercanti [2015] WASC 297 at [179].
On 31 July 2013, Tyrone Mercanti, in his capacity as…

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: [2017] HCA 1
Decision Date: 5 January 2017

CaseChat Overview and Summary

In *Mercanti v Mercanti*, Kiefel J of the High Court of Australia considered an application for the extension of interlocutory injunctions that had been in force since August 2013. The application was made pending the determination of an application for special leave to appeal to the High Court and any subsequent appeal, should special leave be granted.

The central legal issue before the Court was whether injunctive relief should be granted to extend the existing injunctions. This required the Court to assess whether the applicant had demonstrated a substantial prospect that special leave to appeal would be granted, a key consideration in granting such interlocutory relief in this context.

Kiefel J reasoned that the existing injunctions should be continued to preserve the status quo pending the resolution of the special leave application and any potential appeal. The Court applied the principles governing the grant of interlocutory injunctions, particularly in circumstances where an application for special leave to appeal is on foot, focusing on the need to prevent irreparable harm and maintain the subject matter of the potential appeal.

The Court ordered that the First Respondent be restrained from exercising powers as Appointor or Guardian of the M Mercanti Family Trust, and the Second Respondent be restrained from acting as Trustee, including dealing with trust assets or incurring liabilities. These injunctions were to remain in force until the determination of the special leave application and any appeal, or further order. Liberty was granted to the respondents to apply to dissolve or vary the injunctions, and costs were reserved as costs in the cause. The Court also granted leave for the parties to file amended applications and responses.

Orders

Orders of the court

1. The First Respondent be restrained from exercising or purporting to exercise any powers as Appointor or Guardian of the M Mercanti Family Trust (MMF Trust) until the determination of the application for special leave to appeal to the High Court and any appeal, should leave be granted, or until further order.

2. The Second Respondent be restrained from acting or purporting to act as Trustee of the MMF Trust including (but not limited to) restraining it from dealing or purporting to deal with any of the assets of the MMF Trust or incurring or purporting to incur any liabilities on behalf of the MMF Trust, until the determination of the application for special leave to appeal to the High Court and any appeal should special leave be granted, or until further order.

3. Each of the First and Second Respondents have liberty to apply on 48 hours' notice to the Applicant to dissolve or vary these injunctions.

4. The costs of this application be costs in the cause.

5. The Applicant have leave to file an amended application for special leave on or before 4.00 pm on Friday 6 January 2017.

6. The First and Second Respondents have leave to file an amended response within 21 days after service of the amended application for special leave.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

KIEFEL J

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Ratio Decidendi

Legal Principle Established

Established by: KIEFEL J

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