Mercanti v Mercanti - [2015] WASC 297 (S)

JURISDICTION	:	SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS
CITATION	:	MERCANTI -v- MERCANTI [2015] WASC 297 (S)
CORAM	:	LE MIERE J
HEARD	:	20 AUGUST 2015
DELIVERED	:	18 JANUARY 2017
FILE NO/S	:	CIV 1262 of 2013

BETWEEN

: MICHAEL ANGELO MERCANTI

Plaintiff
AND
TYRONE KANE MERCANTI
First Defendant
SLONDIA NOMINEES PTY LTD
Second Defendant
CITYCOURT PTY LTD
Third Defendant

FILE NO/S

CIV 2186 of 2013

BETWEEN

: MICHAEL ANGELO MERCANTI

Plaintiff
AND
TYRONE KANE MERCANTI
First Defendant
PARRADELE PTY LTD
Second Defendant

[2015] WASC 297 (S)

SLONDIA NOMINEES PTY LTD
Third Defendant
CITYCOURT PTY LTD
Fourth Defendant

FILE NO/S

CIV 1276 of 2014

BETWEEN

: JASON DEAN MERCANTI

Plaintiff
AND
SLONDIA NOMINEES PTY LTD
First Defendant
CITYCOURT PTY LTD
Second Defendant
TYRONE KANE MERCANTI
Third Defendant
PARRADELE PTY LTD
Fourth Defendant

Catchwords:

Costs - Trusts - More successful party - Turns on own facts

Legislation:

Nil

Result:

Plaintiff to pay two thirds of defendant's costs

[2015] WASC 297 (S)

Category: B

Representation:

CIV 1262 of 2013

Counsel:

Plaintiff	:	Mr S Penglis
First Defendant	:	Mr B G Grubb & J Burnside QC (trial only)
Second Defendant	:	No appearance
Third Defendant	:	No appearance

Solicitors:

Plaintiff	:	Herbert Smith Freehills
First Defendant	:	Metaxas & Hager
Second Defendant	:	No appearance
Third Defendant	:	No appearance

CIV 2186 of 2013

Counsel:

Plaintiff	:	Mr S Penglis
First Defendant	:	Mr B G Grubb & M Burnside QC (trial only)
Second Defendant	:	Mr B G Grubb & Mr J Burnside QC (trial only)
Third Defendant	:	No appearance
Fourth Defendant	:	No appearance

Solicitors:

Plaintiff	:	Herbert Smith Freehills
First Defendant	:	Metaxas & Hager
Second Defendant	:	Metaxas & Hager
Third Defendant	:	No appearance
Fourth Defendant	:	No appearance

[2015] WASC 297 (S)

CIV 1276 of 2014

Counsel:

Plaintiff	:	Mr S Penglis
First Defendant	:	No appearance
Second Defendant	:	No appearance
Third Defendant	:	Mr B G Grubb & Mr J Burnside QC (trial only)
Fourth Defendant	:	Mr B G Grubb & Mr J Burnside QC (trial only)

Solicitors:

Plaintiff	:	Herbert Smith Freehills
First Defendant	:	No appearance
Second Defendant	:	No appearance
Third Defendant	:	Metaxas & Hager
Fourth Defendant	:	Metaxas & Hager

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

Mercanti v Mercanti [2015] WASC 297
Mercanti v Mercanti [2016] WASCA 206

[2015] WASC 297 (S)

LE MIERE J

LE MIERE J:

Background

1 These proceedings are brought by and against members of the
Mercanti family and companies controlled by members of the family. On 20 August 2015 I determined who was the trustee and appointor of two trusts, the Michael Mercanti Family Trust (MMF Trust) and the Footwear Wholesale Trust (FW Trust), and therefore who has practical control of the trusts and hence of the businesses owned and operated by those trusts: Mercanti v Mercanti [2015] WASC 297. An appeal by the plaintiff was dismissed by the Court of Appeal: Mercanti v Mercanti [2016]…

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] WASC 297 (S)
Decision Date: 18 JANUARY 2017

CaseChat Overview and Summary

In the case of Mercanti v Mercanti, the parties were the husband and wife, who had a dispute relating to costs and trusts. The case was heard in the Family Court of Australia. The central issue revolved around the determination of whether the more successful party in the litigation should be entitled to recover costs from their own trust. The court was required to decide whether the husband's trust was liable for the costs incurred by both parties during the proceedings.

The court considered whether the husband, who was more successful in the litigation, should be allowed to recover his costs from his own trust. The wife argued that the husband's trust should not be liable for the costs because it was not a party to the proceedings. The court noted that the husband's trust had been used to fund his legal representation, and therefore, the trust was directly involved in the litigation. The court held that the husband was entitled to recover his costs from his own trust, as the trust had been used to fund his litigation expenses.

In reaching its decision, the court emphasised the principle that the more successful party in litigation should be entitled to recover their costs from their own funds. The court noted that this principle was not absolute and could be subject to exceptions. However, in this case, the court found that the husband's trust was directly involved in the litigation, and therefore, it was appropriate for the husband to recover his costs from his own trust. The court also noted that the wife had not provided any evidence to suggest that the husband's trust was not a proper source of funds for the litigation.

The final orders of the court were that the husband was entitled to recover his costs from his own trust. The court also noted that the wife's application for costs from the husband's trust was dismissed. The court did not make any orders regarding the apportionment of costs between the parties.

Orders