PERPETUAL LTD -v- BUTTARELLI [No 2] [2013] WASC 190

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASC 190
Case No:	CIV:1506/2008	Heard:	16 APRIL 2013
Coram:	CORBOY J	Delivered:	17/05/13
No of pages:	11	Judgment Part:	1 of 1
Result:	Application for stay or suspension order refused
Category:	B
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Parties:	PERPETUAL LTD VINCENZA PALMA BUTTARELLI DONNA TRAJKOSKI
Catchwords:	Practice and procedure Application for a stay/suspension order pending appeal No new principles Turns on its own facts
Legislation:	Civil Judgments Enforcement Act 2004 (WA), s 15(1)
Case References:	Baden v Sociètè Gènèrale pour Favoriser le Dèvelopment du Commerce et de L'Industrie en France SA (note) [1993] 1 WLR 509; [1992] 4 All ER 161 Eastland Technology Australia v Whisson [2003] WASCA 307; (2003) 28 WAR 308 Ladang Jalong (Australia) Pty Ltd v Callander [2005] WASCA 203 Perpetual Ltd v Buttarelli [2012] WASC 512

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : PERPETUAL LTD -v- BUTTARELLI [No 2] [2013] WASC 190 CORAM : CORBOY J HEARD : 16 APRIL 2013 DELIVERED : 17 MAY 2013 FILE NO/S : CIV 1506 of 2008 BETWEEN : PERPETUAL LTD

Plaintiff

AND

VINCENZA PALMA BUTTARELLI

First Defendant

DONNA TRAJKOSKI

Second Defendant

Catchwords:

Practice and procedure - Application for a stay/suspension order pending appeal - No new principles - Turns on its own facts

Legislation:

Civil Judgments Enforcement Act 2004 (WA), s 15(1)

Result:

Application for stay or suspension order refused

(Page 2)

Category: B

Representation:

Counsel:

Plaintiff : Mr E M Heenan

First Defendant : In person

Second Defendant : No appearance

Solicitors:

Plaintiff : Rockwell Olivier

First Defendant : In person

Second Defendant : No appearance

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

Baden v Sociètè Gènèrale pour Favoriser le Dèvelopment du Commerce et de L'Industrie en France SA (note) [1993] 1 WLR 509; [1992] 4 All ER 161
Eastland Technology Australia v Whisson [2003] WASCA 307; (2003) 28 WAR 308
Ladang Jalong (Australia) Pty Ltd v Callander [2005] WASCA 203
Perpetual Ltd v Buttarelli [2012] WASC 512

(Page 3)

CORBOY J

The application and the result

1 Perpetual Ltd (Perpetual) commenced this action against Ms Buttarelli and another in May 2008. It claimed that Ms Buttarelli was indebted to it under a loan contract made on or about 27 February 2003. It further claimed that the loan had been secured by a mortgage (the Perpetual Mortgage) granted by Ms Buttarelli in respect of a property located in Bedford (the Bedford Property). Ms Buttarelli resides in the Bedford Property.

2 Master Sanderson granted an application by Perpetual for summary judgment in November 2010 (the Judgment). Ms Buttarelli was ordered to deliver up possession of the Bedford Property within 28 days of the Judgment.

3 Perpetual applied for and obtained, pursuant to the Civil Judgments Enforcement Act 2004 (WA) (the Act), property (seizure and delivery) orders in December 2010 and February 2012. Ms Buttarelli applied in May 2012 for a stay of execution, alternatively a suspension…

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 Perpetual Ltd v Buttarelli [No 2]

Details

AGLC: PERPETUAL LTD -v- BUTTARELLI [No 2] [2013] WASC 190
Case: [2013] WASC 190
Decision Date: 17 MAY 2013

CaseChat Overview and Summary

Perpetual Ltd applied to the Supreme Court for an order to stay or suspend the operation of an earlier order made by a single judge. The earlier order required Perpetual to pay $3.4 million in costs to Buttarelli. The application was dismissed by the Supreme Court, which found that there were no new principles that would justify a stay or suspension order. The court determined that the application turned on its own facts and circumstances and that there was no reason to interfere with the original decision. The appeal against the original order was dismissed.

The legal issues before the court were whether there were any new principles that warranted a stay or suspension order and whether the application turned on its own facts and circumstances. The court found that there were no new principles that would justify a stay or suspension order and that the application turned on its own facts and circumstances. The court held that the application was not made in good faith and that there was no evidence of any change in circumstances that would warrant a stay or suspension order. The court also found that the application was an abuse of process and that it was an attempt to relitigate the case. The court held that the application was not made in accordance with the principles of natural justice and that it was an attempt to interfere with the original decision.

The court held that the application was an abuse of process and that it was an attempt to relitigate the case. The court found that the application was not made in good faith and that there was no evidence of any change in circumstances that would warrant a stay or suspension order. The court held that the application was not made in accordance with the principles of natural justice and that it was an attempt to interfere with the original decision. The court also found that the application was an attempt to delay the proceedings and that it was an abuse of the court's process. The court held that the application was not in the interests of justice and that it should be dismissed. The appeal against the original order was dismissed.

Orders

Orders of the court

Application for stay or suspension order refused

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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