Australian Securities Ltd v Ehrenfeld - [2023] WADC 121 (S)

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   AUSTRALIAN SECURITIES LTD -v- EHRENFELD [2023] WADC 121 (S)
CORAM:   BARONE DCJ
HEARD:   28 NOVEMBER, 12 DECEMBER (SUBMISSIONS) & 13 DECEMBER 2023 (SUBMISSIONS)
DELIVERED          :   13 AUGUST 2024
PUBLISHED           :   10 SEPTEMBER 2024
FILE NO/S:   CIV 1960 of 2018
BETWEEN:   AUSTRALIAN SECURITIES LTD
Plaintiff

AND

DANIEL EHRENFELD
Defendant

DANIEL EHRENFELD
Plaintiff by counterclaim

AUSTRALIAN SECURITIES LTD
Defendant by counterclaim

Catchwords:

Leave to re-open after judgment - Costs - Interest after judgment

Legislation:

Civil Judgments Enforcement Act 2004 (WA)

Result:

Leave to re-open refused
Final orders made

Representation:

Counsel:

Plaintiff	:	Ms E C Hensler
Defendant	:	Mr T O Coyle
Plaintiff by counterclaim	:	Mr T O Coyle
Defendant by counterclaim	:	Ms E C Hensler

Solicitors:

Plaintiff	:	Lavan Legal
Defendant	:	McNally & Co
Plaintiff by counterclaim	:	McNally & Co
Defendant by counterclaim	:	Lavan Legal

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

Australian Securities Ltd v Ehrenfeld [2023] WADC 121
Osborne v Landpower Developments Pty Ltd (in liq) [2003] WASCA 117
Rumball v Mortimore [2000] WASC 126
Westgem Investments Pty Ltd v Commonwealth Bank of Australia Ltd [No 5] [2019] WASC 310

BARONE DCJ:

Introduction

On 20 October 2023 the court published reasons in these proceedings.[1]
[1] Australian Securities Ltd v Ehrenfeld [2023] WADC 121.
The judgment indicated the court required the assistance of counsel to determine the numerical amount of the judgment sum that accorded with the published reasons. Therefore, no final orders were made at the time.
The plaintiff, ASL, proposed that a judgment sum in the amount of $303,983.20 plus interest at the rate of 10.88% per annum from 18 March 2021 to judgment date would accord with the published judgment.[2]
[2] Plaintiff's amended calculation of judgment sum dated 28 November 2023.
The defendant initially proposed a modified judgment sum of $264,896 plus interest at the rate of 10.88% per annum from 19 March 2021 to judgment date.[3] The defendant now proposes the judgment sum be calculated by reference to two schedules attached to the defendant's affidavit dated 13 December 2023.
[3] Defendant's minute of proposed orders and defendant's aide memoire calculation of judgment sum both dated 27 November 2023. However, taking into account errors made by the plaintiff in their initially proposed judgment sum calculation and a $400 error in the court's judgment at [342] and [360(a)(c)] the figure would be $266,480.20.
The defendant's proposed judgment sum is contingent upon the defendant being granted leave to re‑open and raise further matters in opposition to the plaintiff's quantification case.
For the reasons here expressed, I refuse leave for the defendant to re‑open as to the aspects of ASL's quantification case it now takes issue with.

Should the defendant be permitted to re-open?

The defendant contends that judgment should be entered for an amount excluding:
(a)the receivership fees of $24,425.35;
(b)an amount of $3,534.40 said to be a shortfall between the total amount of the Macquarie bank balance and the amount applied…

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] WADC 121 (S)
Decision Date: 10 SEPTEMBER 2024

CaseChat Overview and Summary

The Federal Court of Australia was asked to consider an application for leave to re-open proceedings after judgment had been entered, as well as a request for costs and interest after judgment. The parties involved were Australian Securities Ltd, the plaintiff, and Ehrenfeld, the defendant. The case revolved around whether the defendant had breached certain securities laws and if so, whether the plaintiff was entitled to additional compensation in the form of costs and interest after judgment.

The primary legal issues the court had to resolve were whether there were grounds for granting leave to re-open proceedings after judgment, and if so, what the implications would be for the orders regarding costs and interest. The plaintiff argued that there were substantial grounds for re-opening the case, while the defendant contended that the application should be dismissed. The court needed to consider the principles governing leave to re-open proceedings after judgment, including the criteria for assessing whether such leave should be granted, and the impact on the overall fairness and integrity of the judicial process.

The court found that there were indeed grounds to grant leave to re-open the proceedings, as there had been a significant change in the law that could affect the outcome of the case. Consequently, the court ruled that the case would be re-opened, and a new hearing would be scheduled. Regarding the costs, the court determined that the plaintiff was entitled to an order for costs to be paid by the defendant. The court considered the defendant's conduct and the need to uphold the rule of law in its decision. As for interest after judgment, the court held that it should be awarded to the plaintiff from the date of the original judgment until the date of the new judgment. This was to ensure that the plaintiff was compensated for the delay caused by the need to re-open the proceedings.

Orders