Washburn Pty Ltd v Cardaci - [2022] WASCA 43

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   WASHBURN PTY LTD -v- CARDACI [2022] WASCA 43
CORAM:   MITCHELL JA
VAUGHAN JA

HEARD:   23 MARCH 2022
DELIVERED          :   1 APRIL 2022
FILE NO/S:   CACV 7 of 2022
BETWEEN:   WASHBURN PTY LTD
First Appellant
RECTANGULAR PTY LTD
Second Appellant
ONGOLD CORPORATION PTY LTD
Third Appellant
FILIPPO PRIMO CARDACI
Fourth Appellant
ANGELA FRANCESCA CARLA FLORIDO
Fifth Appellant
AND
MAE CARDACI
First Respondent
DUPORTE CORPORATION PTY LTD
Second Respondent
POWERCITY PTY LTD
Third Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   LE MIERE J
Citation: CARDACI -v- FILIPPO PRIMO CARDACI as executor of the estate of MARCO ANTONIO CARDACI [No 5] [2021] WASC 331 (S)
File Number            :   CIV 1750 of 2017, CIV 3186 of 2016

Catchwords:

Appeal - Practice and procedure - Application for a stay of enforcement of primary orders pending determination of the appeal - Where appeal said to be rendered nugatory by reason of the prospect of enforcement of monetary orders by an application to wind up the corporate appellants and prospect that money paid may not be recoverable from respondent if appeal succeeds

Legislation:

Civil Judgments Enforcement Act 2004 (WA), s 15

Result:

Application dismissed

Category: B

Representation:

Counsel:

First Appellant	:	T M Rogan
Second Appellant	:	T M Rogan
Third Appellant	:	T M Rogan
Fourth Appellant	:	T M Rogan
Fifth Appellant	:	T M Rogan
First Respondent	:	M D Cuerden SC and N L Pham
Second Respondent	:	No appearance
Third Respondent	:	No appearance

Solicitors:

First Appellant	:	Bennett + Co
Second Appellant	:	Bennett + Co
Third Appellant	:	Bennett + Co
Fourth Appellant	:	Bennett + Co
Fifth Appellant	:	Bennett + Co
First Respondent	:	Herbert Smith Freehills
Second Respondent	:	No appearance
Third Respondent	:	No appearance

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

Cardaci v Cardaci [No 2] [2019] WASC 274
Challenge Charter Pty Ltd v Curtain Bros (Qld) Pty Ltd [2004] VSCA 66; (2004) 9 VR 382
Cook's Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] QCA 322; [2008] 2 Qd R 453
Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
Kalifair Pty Ltd v Digi-Tech (Australia) Ltd [2002] NSWCA 383; (2002) 55 NSWLR 737
Mareva Compania Naviera SA v International Bulkcarriers SA [1975] 2 Lloyd's Rep 509
Ryan v Urban Construct (SA) Pty Ltd [No 2] [2012] SASC 193; (2012) 114 SASR 410
Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168
Washburn Pty Ltd v Cardaci [2022] WASCA 15

JUDGMENT OF THE COURT:

Summary

The relevant background to this application is summarised in our reasons for granting an application for security for costs in related appeals.[1] Terms defined in the Security for Costs Decision are used in their defined sense in these reasons.
[1] Washburn Pty Ltd v Cardaci [2022] WASCA 15 [2] - [16] (Security for Costs…

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: [2022] WASCA 43
Decision Date

CaseChat Overview and Summary

The present appeal was brought by Washburn Pty Ltd, Rectangular Pty Ltd, Filippo Primo Cardaci, and Angela Francesca Carla Florido, appealing against orders made in a proceeding brought by Mae Cardaci in the Supreme Court of Western Australia. The orders required the appellants to pay 90% of Mae's costs of the primary proceedings and to pay to Mae certain money paid from the trust assets to meet the corporations' own costs of the primary proceedings. The appellants sought a stay of, or suspension of the enforcement of, certain orders made by the primary judge. The appeal was dismissed. The appellants contended that, if a stay was not granted, then the appeal may be rendered nugatory on two bases. Firstly, the appellants contended that neither Washburn nor Rectangular have sufficient assets to repay amounts of legal costs to their respective trusts or to pay Mae's costs of the Trust action, as required by orders 1, 9 and 10. Secondly, the appellants contended that amounts paid by them in restoring the trust assets and in discharging their liability to pay Mae's trial costs may not be recoverable in the event that they are successful in the appeal. The court found that the current prospect of the corporate trustees being wound up before an appeal is heard is such as to justify the grant of a stay to avoid the appeal being rendered nugatory. The court found that the evidence did not satisfy it that amounts paid to restore the assets of the Washburn Trust and Marc's Testamentary Trust will be irrecoverable if the appeal succeeds.

Orders