Monteleone v Black - [2005] WADC 155

MONTELEONE -v- BLACK & ORS [2005] WADC 155

Last Update: 25/08/2005

MONTELEONE -v- BLACK & ORS [2005] WADC 155
Link to Appeal:	[2007] WASCA 79
Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WADC 155
Case No:	CIV:3400/2002	Heard:	14 APRIL 2005
Coram:	YEATS DCJ	Delivered:	12/08/2005
Location:	PERTH	Supplementary Decision:
No of Pages:	15	Judgment Part:	1 of 1
Result:	Third defendant's appeal allowed Second third fifth and sixth's defendants' applications to set aside service granted Plaintiff's application refused
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	DIONETTE PIER MONTELEONE RICHARD ASH BLACK ASH INVESTMENTS PTY LTD THE OWNERS OF THE OLD SOAP FACTORY CITY OF FREMANTLE DREXEL LONDON (A FIRM) HALPERN GLICK PTY LTD
Catchwords:	Procedure Admissibility of affidavits Extension of the validity of writ Delay causing prejudice Deficiencies in service of writ
Legislation:	District Court Rules, O 6 r 11 Rules of the Supreme Court, O 2 r 1, O 3 r 5, O 7 r 1, O7 r 2, O12 r 6
Case References:	Bell Group NV (in liq) v Aspinall (1998) 19 WAR 561 Brealey v Board of Management Royal Perth Hospital (1999) 21 WAR 79 Brown v Coccaro (1993) 10 WAR 391 Coyne v Sun Securities Ltd & Commercial Equity Corporation Ltd (1992) 8 WAR 218 Hazart Pty Ltd v Rademaker (1993) 11 WAR 26 Jackamarra v Krakouer (1998) 195 CLR 516 Kent v Lechmere Financial Corporation & Ors [2002] WASC 75 Kleinwort Benson Ltd v Barbrak Ltd [1987] AC 597 Koranna Nominees Pty Ltd & Anor v Roberts & Anor, unreported, FCt SCt of WA; Library 4289; 15 October 1981 Re JL Young Manufacturing Co Ltd [1900] 2 Ch 753 Van Leer Australia Pty Ltd v Palace Shipping KK (1980) 180 CLR 337 Ramsay v Madgwicks (a firm) [1989] VR 1

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION : PERTH CITATION : MONTELEONE -v- BLACK & ORS [2005] WADC 155 CORAM : YEATS DCJ HEARD : 14 APRIL 2005 DELIVERED : 12 AUGUST 2005 FILE NO/S : CIV 3400 of 2002 BETWEEN : DIONETTE PIER MONTELEONE

Plaintiff

AND

RICHARD ASH BLACK

First Defendant

ASH INVESTMENTS PTY LTD

Second Defendant

THE OWNERS OF THE OLD SOAP FACTORY

Third Defendant

CITY OF FREMANTLE

Fourth Defendant

DREXEL LONDON (A FIRM)

Fifth Defendant

HALPERN GLICK PTY LTD

Sixth Defendant

(Page 2)

Catchwords:

Procedure - Admissibility of affidavits - Extension of the validity of writ - Delay causing prejudice - Deficiencies in service of writ

Legislation:

District Court Rules, O 6 r 11
Rules of the Supreme Court, O 2 r 1, O 3 r 5, O 7 r 1, O7 r 2, O12 r 6

Result:

Third defendant's appeal allowed
Second, third, fifth and sixth's defendants' applications to set aside service granted
Plaintiff's application refused

Representation:

Counsel:

Plaintiff : Mr J R Criddle

First Defendant : No appearance

Second Defendant : Mr M L Greenland

Third Defendant : Mr C L Hollett

Fourth Defendant : No appearance

Fifth Defendant :…

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: [2005] WADC 155
Decision Date: 12 AUGUST 2005

CaseChat Overview and Summary

The matter of Monteleone v Black came before the court in the context of a legal dispute involving multiple defendants. The plaintiff sought to enforce a judgment obtained against the first defendant, who was also the judgment debtor. The case was complicated by the involvement of several other defendants, each of whom had different roles and responsibilities. The core issue before the court was whether the plaintiff's proceedings against the various defendants could proceed given the procedural irregularities, including the admissibility of affidavits, the extension of the validity of the writ, and the potential prejudice caused by delays and deficiencies in the service of the writ.

The court had to determine whether the plaintiff's actions were justified and whether the defendants had suffered any prejudice as a result of the procedural issues. This involved a careful examination of the legal principles surrounding the admissibility of affidavits and the validity of writs in the context of the circumstances presented. The court also considered whether the defendants' applications to set aside service were warranted and if the plaintiff's application to proceed with the proceedings should be refused.

After thorough deliberation, the court ruled in favour of the third defendant's appeal, finding that the procedural irregularities were significant enough to warrant a stay of the proceedings. The court also granted the applications by the second, third, fifth, and sixth defendants to set aside the service of the writ, acknowledging the prejudice caused by the delays and deficiencies. Conversely, the court refused the plaintiff's application to proceed, deeming it inappropriate given the circumstances. The court's decision was based on a detailed analysis of the procedural rules and the specific facts of the case, leading to the conclusion that the proceedings against the defendants should not continue under the current conditions.

Orders

Orders of the court

Third defendant's appeal allowed

Second

third

fifth and sixth's defendants' applications to set aside service

granted

Plaintiff's application refused

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.