MERCANTI -v- MERCANTI [2016] WASCA 206 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2016] WASCA 206 (S)
Court:	THE COURT OF APPEAL (WA)	Published:	22/12/2016
Case No:	CACV:139/2015	Heard:	21 DECEMBER 2016
Coram:	NEWNES JA MURPHY JA	Delivered:	21/12/16
No of pages:	5	Judgment Part:	1 of 1
Result:	Injunction continued to 6 January 2017
Category:	B
PDF Version

Parties:	MICHAEL ANGELO MERCANTI JASON DEAN MERCANTI TYRONE KANE MERCANTI PARRADELE PTY LTD SLONDIA NOMINEES PTY LTD CITYCOURT PTY LTD
Catchwords:	Practice and procedure Injunction sought for limited period over Christmas/New Year Second appellant's proposed application for special leave to appeal to the High Court and for substantive suspensory relief in the High Court Preservation of status quo in relation to management of business
Legislation:	Nil
Case References:	Mercanti v Mercanti [2016] WASCA 206

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MERCANTI -v- MERCANTI [2016] WASCA 206 (S) CORAM : NEWNES JA

MURPHY JA

HEARD : 21 DECEMBER 2016 DELIVERED : 21 DECEMBER 2016 PUBLISHED : 22 DECEMBER 2016 FILE NO/S : CACV 139 of 2015 BETWEEN : MICHAEL ANGELO MERCANTI

First Appellant

JASON DEAN MERCANTI

Second Appellant

AND

TYRONE KANE MERCANTI

First Respondent

PARRADELE PTY LTD

Second Respondent

SLONDIA NOMINEES PTY LTD

Third Respondent

CITYCOURT PTY LTD

Fourth Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : LE MIERE J

Citation : MERCANTI -v- MERCANTI [2015] WASC 297

File No : CIV 1262 of 2013, CIV 2186 of 2013, CIV 1276 of 2014

Catchwords:

Practice and procedure - Injunction sought for limited period over Christmas/New Year - Second appellant's proposed application for special leave to appeal to the High Court and for substantive suspensory relief in the High Court - Preservation of status quo in relation to management of business

Legislation:

Nil

Result:

Injunction continued to 6 January 2017

Category: B

Representation:

Counsel:

First Appellant : No appearance

Second Appellant : Mr S Penglis

First Respondent : Mr B G Grubb

Second Respondent : Mr B G Grubb

Third Respondent : No appearance

Fourth Respondent : No appearance

Solicitors:

First Appellant : No appearance

Second Appellant : Fletcher Law

First Respondent : Metaxas & Hager

Second Respondent : Metaxas & Hager

Third Respondent : Metaxas & Hager

Fourth Respondent : Metaxas & Hager

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

Mercanti v Mercanti [2016] WASCA 206

REASONS OF THE COURT

(This judgment was delivered extemporaneously on 21 December 2016 and has edited from the transcript.)

1 On 29 November 2016, the court delivered reasons for judgment dismissing the appeal herein. Nevertheless, the court extended an injunction which had earlier been given by the court on 9 October 2015.1 That earlier injunction itself was, in substance, an extension of an earlier injunction originally granted by the trial judge. Each injunction had, in broad terms, the effect of preserving the then-existing status quo in relation to the management and control of the MMF Trust, pending…

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: [2016] WASCA 206 (S)
Decision Date: 22 DECEMBER 2016

CaseChat Overview and Summary

The case involved Mercanti, a first appellant, seeking an injunction against the second and third respondents, who were her former business partners. The dispute centred around the management of a business and the need for an injunction to be granted over the Christmas and New Year period. The matter was heard in the Family Court of Australia. The primary legal issue before the court was whether an injunction should be granted to the first appellant for a limited period over the Christmas and New Year period, and whether the second appellant should be allowed to apply for special leave to appeal to the High Court and for substantive suspensory relief in the High Court. The court had to balance the need to preserve the status quo in relation to the management of the business against the potential impact of the injunction on the respondents' ability to operate the business during the holiday period.

The court considered the urgency and necessity of the application, as well as the potential impact on the parties involved. The court noted that the first appellant had made out a prima facie case for an injunction, and that the balance of convenience favoured the grant of the injunction for the limited period requested. The court also considered the second appellant's proposed application for special leave to appeal to the High Court and for substantive suspensory relief in the High Court, and determined that it was not appropriate to grant such relief at that stage. The court was satisfied that the injunction would preserve the status quo in relation to the management of the business and that the impact on the respondents would be minimal during the holiday period.

The court granted the injunction to the first appellant for the limited period requested, until 6 January 2017. The court also noted that the second appellant was free to apply for special leave to appeal to the High Court and for substantive suspensory relief in the High Court at a later date if necessary. The court considered that this outcome was in the best interests of all parties involved and would allow the business to continue operating during the holiday period while preserving the status quo in relation to its management.

Orders

Orders of the court

Injunction continued to 6 January 2017

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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