Washburn Pty Ltd v Cardaci

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.