MUSTICA -v- MUSTICA & ORS [2004] WASC 283

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASC 283
Case No:	CIV:1997/2002	Heard:	15 DECEMBER 2004
Coram:	MASTER SANDERSON	Delivered:	24/12/04
No of pages:	9	Judgment Part:	1 of 1
Result:	Stay refused
Category:	B
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Parties:	ANTONIO MUSTICA STEVE MUSTICA ANDREW MACRI GARY PAUL MACRI FRANK MACRI FRANCES CARMEL MONTEROSSO MECOLATA EVANS PAULINE WEST THE REGISTRAR OF TITLES
Catchwords:	Practice and procedure Claim action being maintained by brother Whether stay ought be granted Turns on own facts
Legislation:	Nil
Case References:	Bandwill Pty Ltd & Anor v Spencer-Laitt & Ors (2000) 23 WAR 390 Bradlaugh v Newdegate (1883) 11 QBD 1 Choules & Ors v Siglin & Ors [2002] WASC 230 Clairs Keeley (A firm) v Treacy & Ors (2003) 28 WAR 139 Hutley v Hutley (1873) 8 LRQB 112 Abraham v Thompson (1997) 4 All ER 362 Brew v Whitlock [1967] VR 449 Magic Menu Systems Pty Ltd v AFA Facilitation Pty Ltd (1997) 72 FCR 261 Martell v Consett Iron Co Ltd (1955) Ch 363 Re Trepca Mines Ltd (No 2) (1963) 1 Ch 199 Smits v Roach (2002) 55 NSWLR 166 Thai Trading Co (A firm) v Taylor [1998] QB 781

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : MUSTICA -v- MUSTICA & ORS [2004] WASC 283 CORAM : MASTER SANDERSON HEARD : 15 DECEMBER 2004 DELIVERED : 24 DECEMBER 2004 FILE NO/S : CIV 1997 of 2002 BETWEEN : ANTONIO MUSTICA

Plaintiff

AND

STEVE MUSTICA

First Defendant

ANDREW MACRI

Second Defendant

GARY PAUL MACRI

Third Defendant

FRANK MACRI

Fourth Defendant

FRANCES CARMEL MONTEROSSO

Fifth Defendant

MECOLATA EVANS

Sixth Defendant

PAULINE WEST

Seventh Defendant

THE REGISTRAR OF TITLES

Eighth Defendant

(Page 2)

Catchwords:

Practice and procedure - Claim action being maintained by brother - Whether stay ought be granted - Turns on own facts

Legislation:

Nil

Result:

Stay refused

Category: B

(Page 3)

Representation:

Counsel:

Plaintiff : Mr T M Hobday

First Defendant : No appearance

Second Defendant : Mr I A Morison

Third Defendant : Mr I A Morison

Fourth Defendant : Mr I A Morison

Fifth Defendant : Mr I A Morison

Sixth Defendant : Mr I A Morison

Seventh Defendant : No appearance

Eighth Defendant : No appearance

Solicitors:

Plaintiff : Lewis Blyth & Hooper

First Defendant : No appearance

Second Defendant : Halperin Fleming Meertens

Third Defendant : Halperin Fleming Meertens

Fourth Defendant : Halperin Fleming Meertens

Fifth Defendant : Halperin Fleming Meertens

Sixth Defendant : Halperin Fleming Meertens

Seventh Defendant : No appearance

Eighth Defendant : No appearance

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

Bandwill Pty Ltd & Anor v Spencer-Laitt & Ors (2000) 23 WAR 390
Bradlaugh v Newdegate (1883) 11 QBD 1
Choules & Ors v Siglin & Ors [2002] WASC 230
Clairs Keeley (A firm) v Treacy & Ors (2003) 28 WAR 139
Hutley v Hutley (1873) 8 LRQB 112

(Page 4)

Case(s) also cited:

Abraham v Thompson (1997) 4 All ER 362
Brew v…

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.

Continue reading MUSTICA v MUSTICA

Details

AGLC: MUSTICA v MUSTICA [2004] WASC 283
Case: [2004] WASC 283
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Western Australia, Antonio Mustica brought a claim against his brother Steve Mustica and others for an alleged breach of fiduciary duty. The court was required to decide whether to grant a stay of proceedings on the grounds that the plaintiff's action was being maintained by a party with an interest in the outcome, and whether the action was champertous. The second, third, fourth, fifth, and sixth defendants argued that the plaintiff's action was being maintained by the first defendant and was champertous. They sought an order for discovery of documents to support their claim and for inspection of privileged documents. The plaintiff contested the application and argued that the relationship between him and the first defendant, being brothers, precluded a stay, even if the action was champertous.

The court considered whether the action could be stayed if the first defendant had an interest in the litigation. It was assumed that the first defendant was maintaining the plaintiff's action and that the maintenance was champertous. The court examined the torts of champerty and maintenance and concluded that the first defendant had an interest in the proceedings due to the blood relationship with the plaintiff. The court held that a stay should only be granted in rare circumstances and found that staying the proceedings in this case would be unjustified, given the nature of the dispute between the parties. The court also noted that the defendants could raise the issue of maintenance and champerty as part of their defence but it could not provide a basis for an interim stay of the proceedings.

The court refused to grant an interim stay of proceedings and declined to order discovery on the issue of maintenance and champerty prior to trial. The court directed the parties to discuss the precise form of orders and costs.

Orders