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Bandwill Pty Ltd v Spencer-Laitt

Bandwill Pty Ltd v Spencer-Laitt

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Case Copied 24 August 2000 62 min read

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: BANDWILL PTY LTD & ANOR -v- SPENCER-LAITT & ORS [2000] WASC 210

CORAM: TEMPLEMAN J

HEARD: 13 & 14 JULY 2000

DELIVERED : 24 AUGUST 2000

FILE NO/S: CIV 2114 of 1999

BETWEEN: BANDWILL PTY LTD (ACN 009 165 066)
First Plaintiff
GAD RAVEH
Second Plaintiff
AND
GRAHAM ST JOHN SPENCER-LAITT
First Defendant
MALCA SPENCER-LAITT
Second Defendant
LODI HOLDINGS PTY LTD (ACN 009 458 682)
Third Defendant
FREEHILL HOLLINGDALE & PAGE
Fourth Defendant

Catchwords:

Application for an interlocutory stay of action on the basis that it is being funded pursuant to a champertous agreement - Principles applicable to such applications - Whether sufficient risk of abuse of process to warrant a stay

Legislation:

Nil

Result:

Applications dismissed

Representation:

Counsel:

First Plaintiff                :     Mr D M Stone & Mr D R Kilpatrick
Second Plaintiff            :     Mr D M Stone & Mr D R Kilpatrick
First Defendant             :     Mr D R Meagher QC & Mr J D Karas
Second Defendant         :     Mr D R Meagher QC & Mr J D Karas
Third Defendant           :     Mr D R Meagher QC & Mr J D Karas
Fourth Defendant          :     Mr M Tobias QC & Mr G R Donaldson

Solicitors:

First Plaintiff                :     Williams & Hughes
Second Plaintiff            :     Williams & Hughes
First Defendant             :     Fisher Jeffries
Second Defendant         :     Fisher Jeffries
Third Defendant           :     Fisher Jeffries
Fourth Defendant          :     Jackson McDonald

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

Abraham v Thompson [1997] 4 All ER 362
Buiscex Ltd v Panfida Foods Ltd (1998) 28 ACSR 357
Dataquest (Australia) Pty Ltd v Dataquest Inc, unreported; 8 August 1996
Faryab v Smyth, unreported; English Court of Appeal; 28 August 1998
Freehill Hollingdale & Page v Bandwill Pty Ltd [2000] WASCA 150
Giles v Thompson [1994] 1 AC 143
Grovewood Holdings PLC v James Capel & Co Ltd [1995] Ch 80
Harrison v Schipp [1999] NSWCA 443
Hodges v State of New South Wales (1988) 77 ALR 1
Magic Menu Systems Pty Ltd v AFA Facilitations Pty Ltd (1996) 72 FCR 261
Martell v Consett Iron Co Ltd [1955] Ch 363
Re Movitor Pty Ltd (1966) 64 FCR 38
Re Oasis Merchandising Services Ltd [1998] 1 Ch 170
Re Trepca Mines Ltd (No 2) [1963] 1 Ch 199
Stocznia Gdanska v Latreefers Inc, unreported; English Court of Appeal; 9 February 2000
Trendtex Trading Corporation v Credit Suisse [1982] AC 679
Wild v Simpson [1919] 2 KB 544

Case(s) also cited:

Beatty v Brashes Pty Ltd (1998) 16 ACLC 1138; [1998] 2 VR 201
British Cash & Parcel Conveyers Ltd v Lanson Store Services Co Ltd [1908] KB 1006
Brownton Ltd v Edward Moore Inbucon Ltd [1985] 3 All ER 499
Bulli Coal Mining Co (1897) 18 LR (NSW) (Eq) 146; [1899] AC 351
Carob Industries Pty Ltd (In Liq) v Simto Pty Ltd (1999) 18 ACLC 177
Christmas Island Resort Pty Ltd v Geraldton Building Company Pty Ltd (No 5) (1997) 18 WAR 334
Condliffe v Hislop [1996] 1…

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: [2000] WASC 210
Decision Date: 24 AUGUST 2000

CaseChat Overview and Summary

In the case of Bandwill Pty Ltd v Spencer-Laitt, the applicant, Bandwill, sought an interlocutory stay of the action brought by Spencer-Laitt on the basis that the action was being funded by a third party under a champertous agreement. The application was heard by the Supreme Court of New South Wales, which had to determine the principles applicable to such an application and whether there was sufficient risk of abuse of process to warrant a stay.

The court had to consider the nature and scope of the champertous agreement, the extent to which it might influence the conduct of the proceedings, and the potential for an abuse of process. The court examined whether the applicant had demonstrated a real and substantial risk of unfairness or prejudice that might result from the continuation of the proceedings. The court noted that the mere existence of a champertous agreement was not, in itself, sufficient to warrant a stay of proceedings. Instead, the court had to assess whether the agreement had, or might have, an undue influence on the proceedings.

The court held that there was no sufficient risk of abuse of process to warrant a stay of the proceedings. The court found that the applicant had not demonstrated that the funding arrangement would result in a real and substantial risk of unfairness or prejudice. The court emphasised that the applicant needed to show a high degree of probability that the proceedings would be influenced by the funding arrangement in a way that would undermine the integrity of the judicial process. In this case, the applicant had not met this burden.

The court dismissed the application for an interlocutory stay of the proceedings. The court found that the applicant had not established a sufficient risk of abuse of process that would warrant a stay of the action. The court did not make any orders regarding the costs of the application.

Orders