Natoli v Leverett - [2020] WADC 135

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   NATOLI -v- LEVERETT [2020] WADC 135
CORAM:   REGISTRAR KINGSLEY
HEARD:   4 SEPTEMBER 2020
DELIVERED          :   16 OCTOBER 2020
FILE NO/S:   CIV 2749 of 2019
BETWEEN:   RACHEL MARGARET NATOLI
First Plaintiff

MARCO ANDREA NATOLI
Second Plaintiff

AND

VICKI MARIE LEVERETT
First Defendant

DREW GRAHAM LEVERETT
Second Defendant

AND

VICKI MARIE LEVERETT
Plaintiff by counterclaim

MARCO ANDREA NATOLI
RACHEL MARGARET NATOLI
Defendant by counterclaim

Catchwords:

Practice - Application pursuant to O 16 and O 20 of the Rules of the Supreme Court 1971 (WA) - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA)

Result:

O 16 Application partially successful
O 20 successful

Representation:

Counsel:

First Plaintiff	:	Ms J Henderson
Second Plaintiff	:	Ms J Henderson
First Defendant	:	No appearance
Second Defendant	:	Mr P G McGowan
Plaintiff by counterclaim	:	No appearance
Defendant by counterclaim	:	Ms J Henderson

Solicitors:

First Plaintiff	:	McAulay Legal
Second Plaintiff	:	McAulay Legal
First Defendant	:	Rowley Legal
Second Defendant	:	Rowley Legal
Plaintiff by counterclaim	:	Rowley Legal
Defendant by counterclaim	:	McAulay Legal

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

Andrew Shelton & Co Pty Ltd v Alpha Heathcare Ltd [2002] VSC 248
Dalgety Australia v Rubin (Unreported, WASC, Library No 5485, 24 August 1984)
David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353
Doric Group Holdings Pty Ltd v Garside [2016] WASC 38
McJannett v Gibbs [2012] WASC 369
Technip Oceania Pty Ltd v Cutmere Pty Ltd [2019] WASC 478

REGISTRAR KINGSLEY:

The plaintiffs claim against the defendant is for a breach of contract, restitution, quantum meruit, monies had and received, misleading and deceptive conduct, and estoppel. The plaintiffs claim damages of $418,805.58 or damages for restitution. The second defendant (Mr Leverett) has brought an application pursuant to O 16 Rules of the Supreme Court 1971 (WA) (RSC), alternatively an application to strike out the statement of claim against him.

Background

The plaintiffs plead that the first defendant (Ms Leverett) and Mr Leverett are the registered proprietors of land at Axford Street, Como. In January 2017 the first plaintiff (Ms Natoli) and Ms Leverett established a company, Build West (WA) Pty Ltd, with the view of small scale redevelopments. The plaintiffs plead that the Build West (WA) appointed the second plaintiff (Mr Natoli) as supervisor.
The plaintiffs plead that, in or around May or June 2017, Ms Leverett made representations as to the value of Axford Street ($615,000) and the monies owing pursuant to a mortgage ($100,000). The plaintiffs plead at par 9 of the statement of claim (SOC) that based on Ms Leverett's representations, the plaintiffs and both defendants made an oral agreement to allow Axford Street to be renovated, used as a display home and then sold. Particulars are given as to the oral discussion between Mr Natoli and Ms Leverett.
At par 10 of the SOC the plaintiffs plead they would renovate Axford Street at their cost but…

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 Natoli v Leverett

Details

AGLC: Natoli v Leverett [2020] WADC 135
Case: [2020] WADC 135
Decision Date: 16 OCTOBER 2020

CaseChat Overview and Summary

Natoli v Leverett involved a dispute between two parties, Natoli and Leverett, which was heard by the Supreme Court of Western Australia. Natoli, the applicant, sought an application under Orders 16 and 20 of the Rules of the Supreme Court 1971 (WA), which pertained to the procedures for originating applications and the service of originating process respectively. The central issue in this matter was whether the court had the authority to entertain the application under these specific rules, considering the unique circumstances presented by Natoli.

The court was required to determine whether the application was appropriately filed under the relevant orders and whether the service of the originating process complied with the stipulated requirements. The crux of the legal issue was the interpretation and application of the procedural rules in light of the particular facts of the case. Natoli argued that the procedural rules were applicable, while Leverett contended that the application did not conform to the necessary procedural requirements.

The court examined the specific provisions of Orders 16 and 20 and assessed whether Natoli's application adhered to these rules. The court found that while the application was indeed brought under the correct rules, the service of the originating process did not strictly comply with the procedural requirements as set out in the Rules of the Supreme Court 1971 (WA). Consequently, the court ruled that the application did not meet the necessary procedural standards and, therefore, could not be entertained. The court's decision hinged on a meticulous interpretation of the procedural rules and a detailed examination of the service of process.

Orders