Mercanti v Mercanti

[2016] WASCA 206 (S)

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
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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 a curial resolution of the parties' disputes over the MMF Trust. Although the appeal had been dismissed, the court, on 29 November 2016, was of the view that, on balance, it was in the interests of justice overall to preserve the status quo to allow the appellants to obtain advice, as their counsel had foreshadowed, in relation to a possible application for special leave to the High Court of Australia.

2 The application today is for an extension of the injunction of 29 November 2016 (as amended by interim orders on 19 December 2016) to 4.00 pm on 6 January 2017. The evidence in support is to the effect that the second appellant wishes to apply to the High Court for special leave and, for various reasons set out in the affidavit, he has been unable to do so in the few weeks since 29 November 2016. The High Court registry is, it is said, open on 3 January 2017, and the High Court could, it is said, hear a stay or injunction application in the week commencing 3 January 2017.

3 The application is resisted by the respondents on the grounds that there is no good reason why any application to the High Court has not been made to date; that there are no 'exceptional circumstances'; and that there are changed circumstances since the earlier injunctions were granted.

4 As to the respondents' first argument, we consider that the second appellant's explanation for the delay is not unreasonable. As to the second argument, the second appellant does not seek a substantive stay order pending determination of any successful appeal to the High Court. Rather, he is seeking an extension of an injunction for a very limited time to allow him to file grounds for special leave in relation to the issues raised in ground 4 of the appeal herein, and to allow him to approach the High Court for the principal suspensory relief which he seeks from that court in light of those grounds. Consistently with the view we took on 29 November 2016, even though the appeal has been dismissed, this is a case in which, subject to a consideration of the third matter raised by the respondents, it is reasonable, having regard (among other things) to the history of the matter, to allow some limited opportunity for the appellants to seek special leave to appeal to the High Court, without disturbing the present status quo.

5 As to the third matter, the respondents refer to a default notice dated 8 December 2016, issued to Slondia in relation to rent. They also refer to a distribution of $864,222 by the MMF Trust to the FW Trust, which Mr Harris, on behalf of the appellants, had said was done to minimise capital gains tax. It is said by the respondents that the property was acquired prior to 20 September 1985, and no capital gains tax would have been payable. Mr Harris has subsequently said that he had a mistaken belief as to it being subject to capital gains tax.

6 Mr Harris, on behalf of the appellants, has sworn an affidavit dated 19 December 2016 in which he stated, in effect, that he is informed that the rental payment is to be made this week. He also said that whilst he was mistaken as to the capital gains tax issue, having regard to and for the benefit of the consolidated group in order to minimise the tax payable, it was appropriate to make the distribution to the FW Trust. He said that had the moneys not been distributed, the MMF Trust would not have been able to satisfy the tax liability that would have been created, given the financial position of the MMF Trust at the time of the sale of the property.

7 This court is not in a position today to assess the correctness of these last-mentioned points. The distribution in question appears to have preceded at least the grant of the injunction on 29 November 2016.

8 In all the circumstances, and having regard to the very limited period of time sought and the obvious difficulties at this time of year, we are prepared to extend the injunction to 4.00 pm, 6 January 2017 on the same undertakings by the same persons as previously given on 29 November 2016.

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1 See Mercanti v Mercanti [2016] WASCA 206.