TEDESCHI -v- WESTPAC BANKING CORPORATION [2014] WASCA 223

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2014] WASCA 223
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:101/2014	Heard:	10 NOVEMBER 2014
Coram:	NEWNES JA MURPHY JA	Delivered:	3/12/14
No of pages:	7	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	THIERRY TEDESCHI ANTOINETTE TEDESCHI WESTPAC BANKING CORPORATION
Catchwords:	Practice and procedure Whether grounds of appeal have reasonable prospects of success Supreme Court (Court of Appeal) Rules 2005 (WA) r 43(2)(g)(i) Appeal from summary judgment and default judgment by learned master Whether master had jurisdiction Whether master failed to consider evidence Whether master was biased Whether service of writs was effected
Legislation:	Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)(i) Rules of the Supreme Court 1971 (WA), O 14 r 3, O 62A r 4, O 1 r 4(2), O 60, O 72 r 4
Case References:	Fazio v Westpac Banking Corporation [2014] WASCA 80 Glew v Attorney-General of Western Australia [2014] HCASL 164

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : TEDESCHI -v- WESTPAC BANKING CORPORATION [2014] WASCA 223 CORAM : NEWNES JA

MURPHY JA

HEARD : 10 NOVEMBER 2014 DELIVERED : 3 DECEMBER 2014 FILE NO/S : CACV 101 of 2014 BETWEEN : THIERRY TEDESCHI

First Appellant

ANTOINETTE TEDESCHI

Second Appellant

AND

WESTPAC BANKING CORPORATION

Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : SANDERSON M

File No : CIV 1786 of 2013

Catchwords:

Practice and procedure - Whether grounds of appeal have reasonable prospects of success - Supreme Court (Court of Appeal) Rules 2005 (WA) r 43(2)(g)(i) - Appeal from summary judgment and default judgment by learned master - Whether master had jurisdiction - Whether master failed to consider evidence - Whether master was biased - Whether service of writs was effected

Legislation:

Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)(i)

Rules of the Supreme Court 1971 (WA), O 14 r 3, O 62A r 4, O 1 r 4(2), O 60, O 72 r 4

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

First Appellant : In person

Second Appellant : No appearance

Respondent : Mr B C Smith

Solicitors:

First Appellant : In person

Second Appellant : No appearance

Respondent : Gadens

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

Fazio v Westpac Banking Corporation [2014] WASCA 80
Glew v Attorney-General of Western Australia [2014] HCASL 164

1 JUDGMENT OF THE COURT: This matter came before the court on 10 November 2014 to show cause why the appeal should not be dismissed pursuant to r 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules 2005 (WA) on the basis that none of the grounds of appeal has a reasonable prospect of success. The appeal concerned a decision by Master Sanderson on 14 August 2014 to enter summary judgment against the appellants. The appeal was dismissed. These are the reasons for decision.

Background

2 The evidence…

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: [2014] WASCA 223
Decision Date: 3 DECEMBER 2014

CaseChat Overview and Summary

In the matter of Tedeschi v Westpac Banking Corporation, the appellant sought to appeal a decision of a learned master in the Supreme Court of Western Australia, which had granted a summary judgment in favour of the respondent. The appellant contended that the master had no jurisdiction to make the decision and that the master had failed to consider certain evidence. The appellant also argued that the master was biased and that the service of the writs was not properly effected.

The central legal issues the court was required to decide related to the jurisdiction of the master to grant summary judgment and the procedural fairness of the hearing. The court needed to determine whether the master had correctly exercised their discretion and whether there was any procedural unfairness that warranted a rehearing of the matter.

The court held that the grounds of appeal did not have reasonable prospects of success. The court found that the master had jurisdiction to grant summary judgment and that the master had properly considered the evidence before them. The court also dismissed the appellant's claims of bias and found that the service of the writs was adequately completed. The court held that there was no basis to interfere with the decision of the learned master.

As a result of the court's findings, the appeal was dismissed. The decision of the learned master granting summary judgment to the respondent was upheld, and no further appeals were permitted.

Orders

Orders of the court

Appeal dismissed

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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