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Tradesman Technologies Pty Ltd v Ameduri

Tradesman Technologies Pty Ltd v Ameduri

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: TRADESMAN TECHNOLOGIES PTY LTD -v- AMEDURI [2012] WASCA 168

CORAM: PULLIN JA

HEARD: 7 AUGUST 2012

DELIVERED : 7 AUGUST 2012

PUBLISHED : 24 AUGUST 2012

FILE NO/S: CACV 64 of 2012

BETWEEN: TRADESMAN TECHNOLOGIES PTY LTD
Appellant
AND
JOHN AMEDURI
Respondent

FILE NO/S :CACV 65 of 2012

BETWEEN :SERGIO COTELLESSA
Appellant
AND
JOHN AMEDURI
First Respondent
KAREN AMEDURI
Second Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :STONE DCJ
Citation  :TRADESMAN TECHNOLOGIES PTY LTD -v- AMEDURI [No 2] [2012] WADC 85
File No  :CIV 294 of 2011
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :STONE DCJ
Citation  :AMEDURI -v- COTELLESSA [2012] WADC 86
File No  :CIV 3751 of 2009

Catchwords:

Appeal - Application for a suspension order - Turns on own facts

Legislation:

Civil Judgments Enforcement Act 2004 (WA)
Fair Trading Act 1987 (WA)
Trade Practices Act 1974 (Cth)

Result:

Applications dismissed

Category: B

Representation:

CACV 64 of 2012

Counsel:

Appellant: Mr P J Hannan
Respondent: Mr N D C Dillon

Solicitors:

Appellant: De Vita & Dixon
Respondent: Andrew James Foster

CACV 65 of 2012

Counsel:

Appellant:     Mr P J Hannan
First Respondent           :     Mr N D C Dillon
Second Respondent      :     Mr N D C Dillon

Solicitors:

Appellant:     De Vita & Dixon
First Respondent           :     Andrew James Foster
Second Respondent      :     Andrew James Foster

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

Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
Li v Herald and Weekly Times Pty Ltd [2008] VSCA 201
McMahon v National Foods Milk Ltd [2008] VSCA 237
Narain v Euroasia (Pacific) Pty Ltd [2008] VSCA 195
Orrong Strategies Pty Ltd v Village Roadshow Ltd [2007] VSCA 320
Perdaman Chemicals and Fertilisers Pty Ltd v The Griffin Coal Mining Company Pty Ltd [2011] WASCA 188
Sami v Roads Corporation [2009] VSCA 44
Sopov v Kane Constructions Pty Ltd [2009] VSCA 216

PULLIN JA: There are two applications before the court. They are applications for a suspension or a stay of enforcement of judgments in two District Court actions pending an appeal against each of those judgments in this court. At the conclusion of the hearing, I made orders dismissing the applications, granting liberty to the appellants to make further applications and granting costs to the respondents. These are the reasons for those orders.

Cotellessa v Ameduri - CACV 65 of 2012 (appeal against judgment in CIV 3751 of 2009)

The respondents, Mr and Mrs Ameduri, sued Mr Cotellessa for $150,000 which they had lent to Mr Cotellessa on 8 April 2009 and which was repayable on 30 November 2009. Mr Cotellessa's defence was that there was a more complex agreement than the simple loan agreement sued upon by Mr and Mrs Ameduri. Mr Cotellessa said that the more complex agreement was entered into in the following circumstances.
A company known as…

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: [2012] WASCA 168
Decision Date: 24 AUGUST 2012

CaseChat Overview and Summary

In the case of Tradesman Technologies Pty Ltd v Ameduri, the dispute revolved around an application for suspension orders made by the defendants, Mr and Mrs Ameduri, against the appellants, Tradesman Technologies Pty Ltd and Mr Cotellessa. The matter was heard in the County Court of Victoria. The central issue before the court was whether special circumstances existed to justify the suspension of enforcement of a judgment pending the outcome of an appeal.

The court needed to determine if the mere threat of a bankruptcy notice or the appellants' failure to comply with procedural rules constituted special circumstances sufficient to warrant a suspension order. The court also had to consider the likelihood of the appeals being rendered nugatory if not stayed, and the potential impact on the appellants if the orders were not suspended.

The court found that the mere threat of a bankruptcy notice was not, in itself, sufficient to demonstrate special circumstances. Furthermore, no grounds of appeal had been properly formulated, making it difficult to assess the prospects of success for the appeals. The court also noted that Tradesman's appeal could still proceed as scheduled, and no present liability existed for Tradesman to pay any specified sum of money. Consequently, the court concluded that the special circumstances necessary to justify a suspension order were not made out.

As a result, the court dismissed the applications for suspension orders. No final orders were made beyond the dismissal of the applications.

Orders

Orders of the court

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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

However, the mere threat of service of a bankruptcy notice is not always, per se, sufficient to demonstrate special circumstances or that the appeal will be rendered nugatory: see Sami v Roads Corporation [2009] VSCA 44; Sopov v Kane Constructions Pty Ltd [2009] VSCA 216. In relation to Mr Cotellessa in this case, counsel for Mr and Mrs Ameduri advised that a bankruptcy notice had issued although it had not yet been served. If the bankruptcy notice is served and time for compliance is not extended then that fact would have to be weighed in the balance with other factors in determining whether special circumstances were made out. Relevant to this assessment, is the fact that if the parties comply with the rules and proceed as quickly as possible to the hearing of an appeal, it is distinctly possible that the appeal could be heard in February 2013. This may still be so even though the appellant has failed to comply with the rules and had to seek an extension of time in which to file the appellant's case. As to Tradesman, no steps could yet be taken to wind up the company because costs have not been taxed and so there is no present liability in Tradesman to pay any specified sum of money. As a result, there is as yet no circumstance which might render Tradesman's appeal nugatory. Because no appellant's case had been filed in either appeal, there were no grounds of appeal. Usually, if an application for a stay is made and there are no grounds of appeal, an appellant will proffer draft grounds of appeal so that some assessment can be made of the prospects of success. It was not at all clear after hearing counsel for the appellants, what errors it is alleged that the trial judge made in his reasons for decision. Both cases failed because of findings made by the trial judge after hearing oral evidence on the critical issues. In the case of Tradesman, the trial judge said in certain respects there was a lack of any evidence in support of some of the representations which had been pleaded. Attempts were made by counsel for the appellants to formulate possible grounds of appeal, but there was a shifting of ground in the formulation of what might be the grounds of appeal. For example, in relation to the appeal by Mr Cotellessa (CACV 65 of 2012) counsel for the appellant contended that the trial judge erred in making a finding that there was no continuing supply agreement. However, later he contended that the complaint might be that the trial judge erred because the reasons were inadequate. The only concrete suggestion made by Tradesman in relation to its appeal, was that the trial judge had failed to deal with a live issue, namely that of estoppel. However, as mentioned above, the estoppel cause of action was entirely based on pleadings which were relied on to sustain the Trade Practices Act and Fair Trading Act causes of action. The appellant says that a 'word search' of the reasons for judgment reveals that the word 'estoppel' was 'not even mentioned'. That does not matter if the material facts relied upon to make out the cause of action had not been proved.