Walthamstow Pty Ltd v Caratti - [2023] WASC 76

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   WALTHAMSTOW PTY LTD -v- CARATTI [2023] WASC 76
CORAM:   LUNDBERG J
HEARD:   10 MARCH 2023
DELIVERED          :   16 MARCH 2023
FILE NO/S:   CIV 3016 of 2019
BETWEEN:   WALTHAMSTOW PTY LTD
Plaintiff

AND

ALLEN BRUCE CARATTI
Defendant

FILE NO/S: CIV 3136 of 2019
BETWEEN: WALTHAMSTOW PTY LTD
Plaintiff

AND

ALLEN BRUCE CARATTI
First Defendant

TINA MICHELLE BAZZO
Second Defendant

FILE NO/S: CIV 2283 of 2021
BETWEEN: WALTHAMSTOW PTY LTD
Plaintiff

AND

ALLEN BRUCE CARATTI
First Defendant

TINA MICHELLE BAZZO
Second Defendant

Catchwords:

Practice and procedure - Plaintiff's application to have three actions heard at single trial with evidence in one action to be evidence in other actions - Relevant considerations - High degree of commonality between parties, relationships and pleaded issues arising across the actions - Case management considerations - Whether prejudice to one party - Turns on own facts

Legislation:

Australian Securities and Investments Commission Act 2001 (Cth)
Corporations Act 2001 (Cth)
Rules of the Supreme Court 1971 (WA), O1 4A, O1 4B, O83

Result:

Plaintiff's application granted

Category: B

Representation:

CIV 3016 of 2019

Counsel:

Plaintiff	:	Mr R J S French
Defendant	:	Dr J T Schoombee & Mr A P Rumsley

Solicitors:

Plaintiff	:	Taylor Smart
Defendant	:	Alan Rumsley

CIV 3136 of 2019

Counsel:

Plaintiff	:	Mr R J S French
First Defendant	:	Dr J T Schoombee & Mr A P Rumsley
Second Defendant	:	Dr J T Schoombee & Mr A P Rumsley

Solicitors:

Plaintiff	:	Taylor Smart
First Defendant	:	Alan Rumsley
Second Defendant	:	Alan Rumsley

CIV 2283 of 2021

Counsel:

Plaintiff	:	Mr R J S French
First Defendant	:	Dr J T Schoombee & Mr A P Rumsley
Second Defendant	:	Dr J T Schoombee & Mr A P Rumsley

Solicitors:

Plaintiff	:	Taylor Smart
First Defendant	:	Alan Rumsley
Second Defendant	:	Alan Rumsley

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

Ankar Pty Ltd v National Westminster Finance (1987) 162 CLR 549.
Espanol Holdings Pty Ltd v Banning [2000] WASC 192.
Lois Nominees Pty Ltd v QBE Insurance (Australia) Ltd [2011] WASC 208.
Moondancer Holdings Pty Ltd v Navarac Pty Ltd [2011] WASC 250.
Nelson v Thompson [2020] WASC 261.
Norilya Minerals Pty Ltd v Easterday [2009] WASC 191.
Queensland Estates Pty Ltd v Co-ownership Land Development Pty Ltd (No 2) [1971] Qd R 164.
Saker v Creative Land Management Pty Ltd [2000] WASC 44.
Sandes v Wildsmith [1893] 1 QB 711.
Sino Iron Pty Ltd v Mineralogy Pty Ltd [2019] WASC 80; (2019) 55 WAR 89.

Table of Contents

A. INTRODUCTION AND SUMMARY

B. THE PROCEEDINGS

Overview

Recent procedural history

C. RELEVANT PRINCIPLES

D. PRIMARY MATTERS PLEADED BY THE DEFENDANTS

Introduction

Allegation: Capitalisation Representation

Allegation: Enforcement Representation

Allegation: Interest clause is a penalty and unenforceable

Allegation: Failure or refusal to agree to refinance

Allegation: Ankar defence

Allegation: Verbal settlement agreement

E. ADDITIONAL MATTERS PLEADED

F. DISPOSITION

Common parties and relationships

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: [2023] WASC 76
Decision Date: 16 MARCH 2023

CaseChat Overview and Summary

Walthamstow Pty Ltd commenced proceedings against Caratti in the Federal Court of Australia, seeking to have three separate actions heard together at a single trial. The plaintiff argued that there was a high degree of commonality between the parties, relationships, and pleaded issues across the actions, which would make a joint hearing appropriate. The primary legal issue for the court was to determine whether the actions should be consolidated and tried together, considering the factors relevant to such a decision, including the commonality of issues, efficiency in case management, and the potential for prejudice to any party.

The court examined the degree of commonality between the parties and issues in the three actions. It considered the extent to which the same witnesses, documents, and factual circumstances were involved in each action. The court also weighed the potential for case management efficiencies, including the reduction of costs and the avoidance of duplication of evidence. Furthermore, the court assessed whether any party would be prejudiced by a joint hearing. In this instance, the court found that there was a significant overlap in the factual matrix and legal issues, and that the benefits of a single trial outweighed any potential prejudice.

After careful consideration of these factors, the court concluded that the actions should be consolidated for a single trial. The court held that the evidence presented in one action would be relevant and admissible in the other actions, given the substantial commonality of issues and facts. The court also found that the potential for case management efficiencies and the avoidance of unnecessary duplication of evidence and costs justified the consolidation. The court further determined that there was no undue prejudice to any party from a joint hearing. The orders of the court were that the three actions be consolidated for a single trial, with the evidence presented in one action being admissible in the other actions.

Orders