Natoli v Leverett [No 3] - [2022] WADC 53

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   NATOLI -v- LEVERETT [No 3] [2022] WADC 53
CORAM:   DEPUTY REGISTRAR HEWITT
HEARD:   13 MAY 2022
DELIVERED          :   7 JUNE 2022
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

VICKI MARIE LEVERETT
Plaintiff by counterclaim

RACHEL MARGARET & MARCO ANDREA NATOLI
Defendants by counterclaim

Catchwords:

Practice and procedure - Application to strike out defences and counterclaim - Turns on its own facts

Legislation:

Nil

Result:

Application dismissed

Representation:

Counsel:

First Plaintiff	:	Ms T Forde
Second Plaintiff	:	Ms T Forde
First Defendant	:	Mr P G McGowan
Second Defendant	:	Mr P G McGowan
Plaintiff by counterclaim	:	Mr P G McGowan
Defendants by counterclaim	:	Ms T Forde

Solicitors:

First Plaintiff	:	L J Michelmore
Second Plaintiff	:	L J Michelmore
First Defendant	:	Rowley Legal
Second Defendant	:	Rowley Legal
Plaintiff by counterclaim	:	Rowley Legal
Defendants by counterclaim	:	L J Michelmore

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

Palermo v Palermo [2015] WASCA 49
Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2006] WASC 161

DEPUTY REGISTRAR HEWITT:

Introduction

In this matter I am required to determine an application by the plaintiff to strike out the whole of each of the defendants' defences and a counterclaim filed by the first defendant. In order to understand the context in which the application is brought, it is necessary to know something of the facts of the matter, although there is some dispute in regard to those facts as will later appear.

First defendant's defence

The first named defendant and her husband ran a building company named Build West Pty Ltd (Build West). From about 2012 onwards the first defendant and her husband took a lesser involvement in that company and as a consequence it was mismanaged and ultimately Build West ceased to operate and was wound up in 2016. The first defendant and the second defendant were the registered proprietors as tenants in common of a piece of land subject to a registered mortgage. There was a building on the land the subject of an unfinished renovation which had been undertaken by Build West.
The first plaintiff and the first defendant reached an agreement that they would complete the renovations and use the building which was renovated as a show home for an enterprise which they intended to pursue through a company which they intended to register which would pursue small scale premium residential building construction and renovation works in the Perth metropolitan area. That company, which I shall call the new company, was duly incorporated and the first plaintiff and the first defendant were the directors of it.
Renovations were undertaken to the property but the ambition to go into business as a building company was thwarted because it could not obtain builders indemnity insurance.
In about May or June 2017 the plaintiffs…

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 [No 3]

Details

AGLC: Natoli v Leverett [No 3] [2022] WADC 53
Case: [2022] WADC 53
Decision Date

CaseChat Overview and Summary

Natoli v Leverett [No 3] was an application by the plaintiffs, Rachel Margaret Natoli and Marco Andrea Natoli, to strike out the whole of the defendants' defences and counterclaim. The defendants were Vicki Marie Leverett and Drew Graham Leverett. The dispute arose out of a failed business venture and the renovation of a property owned by the defendants. The plaintiffs alleged that they were induced to spend money renovating the property by misrepresentations made by the first defendant. The defendants denied the allegations and the matter came before the District Court of Western Australia. The court considered the arguments made by the parties and examined the relevant paragraphs of the pleadings. The court found that while there were some deficiencies in the pleadings, they did not justify striking out the entire pleading. The court dismissed the application and found that the application was an example of the kind of interlocutory dispute that should be actively discouraged. The court emphasized the importance of proportionality in the resolution of such disputes and noted the significant time and expense involved in this case.

Orders