Rhodes v De Castro - [2022] WASC 214

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   RHODES -v- DE CASTRO [2022] WASC 214
CORAM:   HILL J
HEARD:   14 FEBRUARY 2022
DELIVERED          :   30 JUNE 2022
FILE NO/S:   CIV 2171 of 2021
BETWEEN:   DAMIEN TERENCE MICHAEL RHODES
Plaintiff
AND
GUI JORGE DA COSTA NAPOLEAO DE CASTRO
Defendant

Catchwords:

Practice and procedure - Application by plaintiff for summary judgment - Settlement deed required transfer of units in a trust to the value of $500,000 - Whether plaintiff has established defendant has no arguable defence to claim - Turns on own facts

Practice and procedure - Order 59 r 9 of the Rules of the Supreme Court 1971 (WA) - Whether application should be dismissed because of alleged failure to confer

Practice and procedure - Admissibility of documents as business records under s 79C of Evidence Act 1906 (WA) - Whether documents 'prepared' or 'used' in the trust

Legislation:

Evidence Act 1906 (WA) s 79C
Rules of the Supreme Court 1971 (WA), O 14, O 59 r 9

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	C S Gough
Defendant	:	C S Williams

Solicitors:

Plaintiff	:	Mills Oakley
Defendant	:	Solomon Brothers

Cases referred to in decision:

Brocx v Hughes [2008] WASC 34
Donohoe v The Director of Public Prosecutions (WA) [2011] WASCA 239
McKay v Commissioner of Main Roads [No 2] [2010] WASC 153
Miles v Bull [1969] 1 QB 258; [1968] 3 All ER 632
Murray Riverside Pty Ltd v Toscana (WA) Ravenswood Estate Pty Ltd [2022] WASCA 67
Pownall v Conlan Management Pty Ltd as trustee for the Kalbarri Trust (1995) 12 WAR 370; (1995) 16 ACSR 227
Re McCallum, Holdco Pty Ltd (Administrators appointed) (No 2) [2021] FCA 377

HILL J:

On 23 July 2021, the plaintiff in these proceedings (together with another party) issued proceedings in this court against the defendant and two other parties, being proceedings CIV 1721 of 2021 (First Proceedings). On 27 July 2021, I made freezing orders against the defendant and his related corporate entities freezing assets up to the value of $750,000. Following the making of these orders, the parties entered into settlement negotiations and ultimately, on 4 August 2021, entered into a deed of settlement and release (Deed).
The defendant and his related corporate entities did not perform certain obligations under the Deed. As a result, on 13 August 2021, the plaintiff filed a motion for judgment in the First Proceedings. On 3 September 2021, I ordered that judgment be entered in so far as the plaintiffs in those proceedings were seeking to enforce the Deed. The part of the claim on which judgment was not entered concerned the contention that the defendant had breached cl 5.1(c) of the Deed.
As a consequence, on 4 November 2021, the plaintiff commenced these proceedings by way of a writ of summons indorsed with a statement of claim. A memorandum of appearance was filed on 15 November 2021. On the same date, the plaintiff filed a…

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 Rhodes v De Castro

Details

AGLC: Rhodes v De Castro [2022] WASC 214
Case: [2022] WASC 214
Decision Date

CaseChat Overview and Summary

Damien Terence Michael Rhodes commenced proceedings against Gui Jorge Da Costa Napoleao De Castro seeking summary judgment in the amount of $500,000 plus interest. Mr Rhodes contends the defendant breached cl 5.1(c) of a deed of settlement and release which required the defendant to transfer units in a trust to the value of $500,000 by 11 August 2021. Mr De Castro contends he has not breached the deed. The court considered the evidence on the application and held that the plaintiff had not discharged his onus of proving the defendant had no defence to the claim. In the alternative, the court considered the interests of justice weighed against the grant of summary judgment. The application was dismissed.

Orders