Akavi v Bellem - [2023] WASC 41

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   AKAVI -v- BELLEM [2023] WASC 41
CORAM:   STRK J
HEARD:   24 & 27 JANUARY 2023
DELIVERED          :   24 & 27 JANUARY 2023
PUBLISHED           :   17 FEBRUARY 2023
FILE NO/S:   CIV 1072 of 2023
MATTER:   An application under the Magistrates Court Act 2004 (WA) s 36 for a review order against the Magistrates Court Rockingham Registry
BETWEEN:   MAERA JEMMA AKAVI
Applicant
AND
TERRI COURTNEY MARIANNA BELLEM
First Respondent

Catchwords:

Practice and procedure - Application for injunction to stay enforcement pending judicial review - Where applicant applies for review pursuant to s 36 of the Magistrates Court Act 2004 (WA) of a decision made in the Magistrates Court under the Residential Tenancies Act 1987 (WA) - Whether applicant has a prima facie case that at trial may entitle her to relief - Balance of convenience - Turns on own facts

Legislation:

Civil Judgments Enforcement Act 2004 (WA)
Magistrates Court Act 2004 (WA)
Residential Tenancies Act 1987 (WA)
Rules of the Supreme Court 1971 (WA)

Result:

Application granted on 24 January 2023
Operation of injunction extended on 27 January 2023

Category: B

Representation:

Counsel:

Applicant	:	D M Benson
First Respondent	:	No appearance (24 January 2023) In Person (27 January 2023)

Solicitors:

Applicant	:	Clayton Utz
First Respondent	:	No appearance (24 January 2023) In Person (27 January 2023)

Cases referred to in decision:

Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA 105
Rayney v AW [2009] WASCA 203
Re Magistrate G Benn; Ex parte Gethin [2019] WASC 380
Sawitri v Robson [2019] WASC 82
Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76; (2017) 55 WAR 36
Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110

Table of Contents

Introduction

Factual background

The evidence

Hearing on 24 January 2023 – submissions and disposition

Next steps

Hearing on 27 January 2023 – submissions and disposition

Conclusion

Schedule A - Orders made on 24 January 2023

Schedule B - Orders made on 27 January 2023

STRK J:

(On 24 and 27 January 2023, orders were made and reasons were delivered extemporaneously, which have been edited from the transcripts for clarity.)

Introduction

The applicant, Maera Jemma Akavi, resides in a property known as 13 Oatlands Vista, Wellard (being Lot 84 on Deposited Plan 42934 on Certificate of Title Volume 2591 Folio 256). The respondent, Terri Courtney Marianna Bellem, is the sole registered proprietor of the Wellard property.
On 15 December 2022, Ms Bellem commenced proceedings pursuant to the Residential Tenancies Act 1987 (WA) in the Magistrates Court at Rockingham, described as RSTN 1237 of 2022, which proceeding concerned Ms Akavi's possession of the Wellard property. Following the grant of orders made in favour of Ms Bellem in the Magistrates Court proceeding, including a property (seizure and delivery) order pursuant to the Civil Judgments Enforcement Act 2004 (WA), Ms Akavi faced imminent eviction from the Wellard property.
On 24 January 2023, an ex parte oral…

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.

Continue reading Akavi v Bellem

Details

AGLC: Akavi v Bellem [2023] WASC 41
Case: [2023] WASC 41
Decision Date: 24 January 2023, 27 January 2023

CaseChat Overview and Summary

Ms Akavi applied to the Supreme Court for an injunction to stay enforcement of a decision of the Magistrates Court, which had ordered the sale of her property in favour of Ms Bellem. The dispute arose from a property transaction gone wrong and subsequent proceedings under the Residential Tenancies Act 1987 (WA). Ms Akavi sought to challenge the Magistrates Court's decision on the basis that she was not given notice of the proceedings and that the orders were made without her having the opportunity to be heard.

The court needed to decide whether Ms Akavi had a prima facie case that might entitle her to relief upon the hearing of her application for judicial review of the Magistrates Court decision. The court also needed to consider the balance of convenience, which turned on the facts of the case. The court found that Ms Akavi had not established a prima facie case for relief, and was not prepared to grant an order suspending the enforcement of the judgment. The court concluded that it did not have the power to grant a suspension order as it was neither the court that gave the judgment, nor the court dealing with an appeal against judgment.

The court considered Ms Akavi's personal circumstances, including her recent health struggles and financial position, but ultimately found that these factors did not outweigh the need for the court to follow the proper legal process. The court declined to grant the injunction sought by Ms Akavi, and noted that she had other legal remedies available to her, including an appeal to the Supreme Court.

No orders were made in favour of Ms Akavi, and the decision of the Magistrates Court remains in effect. Ms Akavi may pursue other legal remedies available to her, including an appeal to the Supreme Court.

Orders

Orders of the court

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Background

Background to the litigation

In her second affidavit, Ms Akavi deposed to further matters which inform the balance of convenience, including the following:Background5.I currently live alone at the Property. My daughter, Terri Courtney Marianna Bellem (Terri) is the sole registered proprietor on the certificate of title for the Property.…34.I am currently recovering from treatment for breast cancer. I also have chronic fibromyalgia with widespread pain, depression and anxiety.35.I have a limited income, do not have anywhere else to go, and am extremely distressed at the prospect of being evicted to homelessness.36.If I am evicted to homelessness, my health status and treatment options will be severely impacted. As noted above, shortly prior to 3.30 pm on the afternoon of 24 January 2023, through counsel acting on short notice and pro bono, Ms Akavi sought and obtained from this court urgent interim injunctive relief. At the hearing, counsel for Ms Akavi detailed the circumstances of the purchase of the Wellard property, Ms Akavi's equitable interest in the Wellard property, and the status of the Magistrates Court proceeding. Counsel also outlined Ms Akavi's personal circumstances including her recent health struggles and financial position.[11][11] ts 4 - 5 (24 January 2023). Counsel submitted that in the circumstances the court should be minded to grant injunctive relief pursuant to O 52 of the Rules of the Supreme Court restraining execution of the property (seizure and delivery) order, or alternatively stay of the property (seizure and delivery) order pending the hearing of an application for a review order to be made to this court. Counsel emphasised the urgency of the application and the potential prejudice to Ms Akavi if urgent relief was not granted.[12][12] ts 5, 6 - 7 (24 January 2023). While I accepted that an order suspending the enforcement of a judgment could include an ancillary order as to the operation of a property (seizure and delivery) order,[13] I was not prepared to grant an order suspending the enforcement of the judgment in favour of Ms Bellem granted by the Magistrates Court pursuant to the Civil Judgments Enforcement Act. In circumstances where this court was neither the court that gave the judgment, nor the court dealing with an appeal against judgment, I proceeded on the basis that this court did not have the power under s 15 of the Civil Judgments Enforcement Act to grant a suspension order.[14][13] Civil Judgments Enforcement Act s 15(5)(c).[14] Civil Judgments Enforcement Act s 15(1). However, I understood that Ms Bellem had secured orders on 3 January 2023 pursuant to the Residential Tenancies Act in circumstances where Ms Akavi deposed that such orders were secured without her having prior notice of the same denying her the opportunity to be heard. Further, she complained that a property (seizure and delivery) order had been granted on the same day as her appeal had been filed and before it could be determined; and the property (seizure and delivery) order was to be executed before her application for a stay could be determined.

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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