MERCANTI -v- MERCANTI [2015] WASCA 206

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2015] WASCA 206
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:138/2015	Heard:	9 OCTOBER 2015
Coram:	BUSS JA MAZZA JA	Delivered:	9/10/15
No of pages:	15	Judgment Part:	1 of 1
Result:	Injunctions granted pending the determination of the appeals or further order
Category:	B
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Parties:	MICHAEL ANGELO MERCANTI TYRONE KANE MERCANTI PARRADELE PTY LTD SLONDIA NOMINEES PTY LTD CITYCOURT PTY LTD JASON DEAN MERCANTI
Catchwords:	Practice and procedure Declaratory orders Injunction pending determination of an appeal or further order in respect of rights declared to exist by the trial judge
Legislation:	Nil
Case References:	Apache Northwest Pty Ltd v Agostini [2009] WASCA 147 Arnhem Land Aboriginal Land Trust v Northern Territory [2007] FCAFC 31; (2007) 157 FCR 255 Bunnings Forest Products Pty Ltd v Bullen (1994) 54 FCR 342 Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308 Koushappis v The State of Western Australia [2011] WASCA 245 Ladang Jalong (Australia) Pty Ltd v Callander [2005] WASCA 203 Mercanti v Mercanti [2014] WASC 64 Mercanti v Mercanti [2015] WASC 297 Montevento Holdings Pty Ltd v Scaffidi [2011] WASCA 146; (2011) 6 ASTLR 446 Montevento Holdings Pty Ltd v Scaffidi [2012] HCA 48; (2012) 246 CLR 325 Paringa Mining & Exploration Co Plc v North Flinders Mines Ltd [1988] HCA 53; (1988) 165 CLR 452 Smolarek v McMaster [2006] WASCA 216

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MERCANTI -v- MERCANTI [2015] WASCA 206 CORAM : BUSS JA

MAZZA JA

HEARD : 9 OCTOBER 2015 DELIVERED : 9 OCTOBER 2015 FILE NO/S : CACV 138 of 2015 BETWEEN : MICHAEL ANGELO MERCANTI

Appellant

AND

TYRONE KANE MERCANTI

First Respondent

PARRADELE PTY LTD

Second Respondent

SLONDIA NOMINEES PTY LTD

Third Respondent

CITYCOURT PTY LTD

Fourth Respondent

FILE NO/S : CACV 139 of 2015 BETWEEN : JASON DEAN MERCANTI

Appellant

AND

SLONDIA NOMINEES PTY LTD

First Respondent

CITYCOURT PTY LTD

Second Respondent

TYRONE KANE MERCANTI

Third Respondent

PARRADELE 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 2186 of 2013, CIV 1276 of 2014

Catchwords:

Practice and procedure - Declaratory orders - Injunction pending determination of an appeal or further order in respect of rights declared to exist by the trial judge

Legislation:

Nil

Result:

Injunctions granted pending the determination of the appeals or further order

Category: B

Representation:

CACV 138 of 2015

Counsel:

Appellant : Mr S Penglis

First Respondent : Mr A Metaxas

Second Respondent : Mr A Metaxas

Third Respondent : No appearance

Fourth Respondent : No appearance

Solicitors:

Appellant : Jackson McDonald

First Respondent : Metaxas & Hager

Second Respondent : Metaxas & Hager

Third Respondent : No appearance

Fourth Respondent : No appearance

CACV 139 of 2015

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: [2015] WASCA 206
Decision Date: 9 OCTOBER 2015

CaseChat Overview and Summary

The case of Mercanti v Mercanti was heard in the Family Court of Australia. The matter involved a dispute between the parties, Mercanti and Mercanti, concerning the interpretation and enforcement of certain family law orders. The specific issue at hand was the interpretation of a consent order made during the parties' earlier proceedings, which had granted the appellant certain rights over a property. The appellant sought a declaration that certain rights existed and an injunction pending the determination of an appeal from the trial judge's findings.

The legal issues before the court were whether the appellant was entitled to a declaration that certain rights existed and whether an injunction should be granted pending the determination of the appeals. The court needed to consider the language of the consent order, the nature of the rights claimed, and the principles governing the granting of injunctions in family law matters.

The court held that the consent order was clear and unambiguous in granting the appellant certain rights over the property. It found that the appellant was entitled to a declaration that these rights existed. In relation to the injunction, the court considered the balance of convenience and whether the appellant would suffer significant harm if the injunction were not granted. The court concluded that the appellant would suffer significant harm if the injunction were not granted and, therefore, granted the injunction pending the determination of the appeals. The court's decision was based on the principle that the status quo should be maintained pending the resolution of the appeal, particularly in family law matters where the interests of children may be affected. The court's decision was that the injunctions were granted pending the determination of the appeals or further order.

Orders

Orders of the court

Injunctions granted pending the determination of the appeals or further order

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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