ANDROM Pty Ltd v Shakibaee - [2012] WASC 379

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: ANDROM PTY LTD -v- SHAKIBAEE [2012] WASC 379

CORAM: MASTER SANDERSON

HEARD: 4 OCTOBER 2012

DELIVERED : 10 OCTOBER 2012

FILE NO/S: CIV 3356 of 2011

BETWEEN: ANDROM PTY LTD as Trustee for the K N BUCKINGHAM FAMILY TRUST t/as BUCKINGHAM REDEVELOPMENT COMPANY
Plaintiff
AND
ARASH SHAKIBAEE
POYA SHAKIBAEE
Defendants

Catchwords:

Practice and procedure - Application to stay property seizure and sale order - Application for approval to sell at below market value - Whether order should be made

Legislation:

Civil Judgments Enforcement Act 2004 (WA)

Result:

Application for stay of property seizure and sale order dismissed
Approval for sale below valuation approved

Category: A

Representation:

Counsel:

Plaintiff: Mr D K Skender
Defendants: Mr K A Dundo

Solicitors:

Plaintiff: Tolson & Co
Defendants: Q Legal

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

Boase v Asica Developments Pty Ltd [2009] WASC 183
New Resource Holdings Pty Ltd v Lunt [No 3] [2008] WASC 221

MASTER SANDERSON: On 9 December 2011 the plaintiff issued proceedings against the defendants claiming just over $900,000. The defendants did not enter an appearance and on 20 December 2011 the plaintiff obtained default judgment in an amount of $914,247.35. As a means of enforcing the judgment the plaintiff then issued a property seizure and sale order (PSSO). Pursuant to the PSSO the sheriff seized a property in the name of the defendants in Money Street, Perth. He took steps to auction the property. On 19 April 2012 the plaintiff provided the sheriff with a valuation of the property saying a fair value was $1,750,000. On 29 June 2012 the defendants provided a valuation report saying a fair value was $2,470,000.
The sheriff undertook an auction on 13 July 2012. The highest bid at the auction was $1,550,000. The sheriff declined to accept that bid and advised the plaintiff accordingly. Between 19 July and 26 July 2012 the plaintiff received various offers for the property ranging between $1,480,000 and $1,551,000. Of course pursuant to the PSSO the plaintiff was not in a position to direct the sheriff to accept any of these offers.
On 7 August 2012 the plaintiff issued an application under the Civil Judgments Enforcement Act 2004 (WA) seeking to vary the manner of sale under the PSSO. The plaintiff sought to have the court authorise the sheriff to accept an offer for the property in an amount of $1,500,000 or greater.
On 20 August 2012 the defendants issued proceedings against the plaintiff (CIV 2411 of 2012) (the defendants' proceedings). The defendants' proceedings appear on the fact of it to relate to matters which could have been raised by the defendants in the proceedings issued by the plaintiff and in which they obtained default judgment. On 11 September 2012 the defendants issued a chamber summons in these proceedings effectively seeking to have the enforcement of the PSSO suspended pending determination of their action against the plaintiff. Both the plaintiff's application and the defendants' application were heard together…

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] WASC 379
Decision Date: 10 OCTOBER 2012

CaseChat Overview and Summary

The case involved ANDROM Pty Ltd, a company, against Shakibaee, an individual, in the Federal Court of Australia. The dispute centred around the seizure and sale of property, with ANDROM seeking an order to halt the seizure and sale of the property, which was scheduled to occur under a previous court order. ANDROM also sought approval to sell the property at a price below its market value. The Federal Court was required to determine whether to grant the application for a stay of the seizure and sale and whether to approve the sale at a below-market price.

The legal issues before the court included whether ANDROM had a sufficient basis to seek a stay of the property seizure and sale and whether the proposed sale price below market value was justifiable under the circumstances. The court had to consider the implications of the previous court order, the rights of the parties involved, and the potential impact of the sale on the property's market value. Additionally, the court needed to assess whether the proposed sale price was reasonable and whether it would adequately protect the interests of the parties.

The court examined the application for a stay and found that ANDROM had not demonstrated a strong enough basis to warrant a stay of the seizure and sale. The court held that the previous order should stand, and the seizure and sale should proceed as scheduled. Regarding the approval of the sale at below market value, the court considered the arguments presented by ANDROM and concluded that the proposed sale price was reasonable and appropriate under the circumstances. The court determined that the sale at the proposed price would adequately protect the interests of the parties involved. Consequently, the court granted approval for the sale to proceed at the below-market value.

In conclusion, the Federal Court denied ANDROM's application to stay the property seizure and sale but approved the sale at the proposed below-market price. The court's decision upheld the previous order and recognised the appropriateness of the sale terms.

Orders