MUSTICA v MUSTICA

Case [2004] WASC 283


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



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2004] WASC 283
Case No:CIV:1997/200215 DECEMBER 2004
Coram:MASTER SANDERSON24/12/04
9Judgment Part:1 of 1
Result: Stay refused
B
PDF Version
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…

Continue reading MUSTICA v MUSTICA

Sign in free to access the full text

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

Orders of the court

Full text does not contain this section.

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.