NASO -v- DANEHILL NOMINEES PTY LTD & ORS [2006] WASC 265

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WASC 265
Case No:	CIV:1678/2006	Heard:	15 NOVEMBER 2006
Coram:	MARTIN CJ	Delivered:	15/11/06
No of pages:	11	Judgment Part:	1 of 1
Result:	Application allowed and injunction discharged Order for indemnity costs made payable by plaintiff's legal advisers with liberty to set aside and liberty to apply if difficulty apportioning responsibility Order for the fifth defendant be joined as a defendant discharged
Category:	B
PDF Version

Parties:	BIANCA ROSIE NASO DANEHILL NOMINEES PTY LTD VINCENZO TRANCHITA VINCENZO FAZIO GIUSEPPINA FAZIO REGISTRAR OF TITLES TONY GREGO
Catchwords:	Practice and procedure Injunctions Application to discharge injunction ex parte interlocutory injunction Procedural fairness Where no notice given to defendants against whom injunctive relief was sought at the time the application for injunction was made Whether the plaintiff's legal practitioners fulfilled their duties as officers of the Court Where the parties attended mediation Confidential nature of mediation Misuse of confidential information Where non-disclosure of certain information to the Judge who ultimately granted the injunction Where the effect of injunction would significantly prejudice negotiations Turns on own facts Costs Indemnity costs Where costs to be borne by the plaintiff's legal advisers
Legislation:	Supreme Court Act 1935 (WA), s 71
Case References:	Bentley v Nelson [1963] WAR 89 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : NASO -v- DANEHILL NOMINEES PTY LTD & ORS [2006] WASC 265 CORAM : MARTIN CJ HEARD : 15 NOVEMBER 2006 DELIVERED : 15 NOVEMBER 2006 FILE NO/S : CIV 1678 of 2006 BETWEEN : BIANCA ROSIE NASO

Plaintiff

AND

DANEHILL NOMINEES PTY LTD

First Defendant

VINCENZO TRANCHITA

Second Defendant

VINCENZO FAZIO

Third Defendant

GIUSEPPINA FAZIO

Second-named Third Defendant

REGISTRAR OF TITLES

Fourth Defendant

TONY GREGO

Fifth Defendant

(Page 2)

Catchwords:

Practice and procedure - Injunctions - Application to discharge injunction ex parte interlocutory injunction - Procedural fairness - Where no notice given to defendants against whom injunctive relief was sought at the time the application for injunction was made - Whether the plaintiff's legal practitioners fulfilled their duties as officers of the Court - Where the parties attended mediation - Confidential nature of mediation - Misuse of confidential information - Where non-disclosure of certain information to the Judge who ultimately granted the injunction - Where the effect of injunction would significantly prejudice negotiations - Turns on own facts

Costs - Indemnity costs - Where costs to be borne by the plaintiff's legal advisers

Legislation:

Supreme Court Act 1935 (WA), s 71

Result:

Application allowed and injunction discharged

Order for indemnity costs made payable by plaintiff's legal advisers with liberty to set aside and liberty to apply if difficulty apportioning responsibility
Order for the fifth defendant be joined as a defendant discharged

Category: B

(Page 3)

Representation:

Counsel:

Plaintiff : Mr P C Doherty

First Defendant : Mr P K Walton

Second Defendant : Mr M N Solomon

Third Defendant : Mr P K Walton

Second-named…

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: [2006] WASC 265
Decision Date

CaseChat Overview and Summary

In the case of Naso v Danehill Nominees Pty Ltd, the plaintiff, Bianca Rosie Naso, sought an injunction against the first, second, and third defendants, as well as the Registrar of Titles, Tony Grego, without giving notice to them. The injunction was initially granted on 3 November 2006. The defendants then applied to discharge the injunction, arguing that the injunction was obtained without following proper procedural fairness and that confidential information from mediation was improperly used in the application. The court had to decide whether the injunction should be discharged and if the defendants' legal advisers should bear the costs of the application. The court found that the application for the injunction was made improperly, as it breached the duty of confidentiality imposed by the Supreme Court Act 1935 (WA) and failed to disclose relevant information to the judge. The court also found that the injunction would significantly prejudice ongoing negotiations between other parties involved in the case. As a result, the court discharged the injunction and ordered that the costs of the application be borne by the plaintiff's legal advisers on an indemnity basis. The plaintiff has the liberty to re-apply for an injunction, but it must be done with proper notice and in the usual course.

Orders