Bartle v On Q Securities Pty Ltd - [2018] WASC 234

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   BARTLE -v- ON Q SECURITIES PTY LTD [2018] WASC 234
CORAM:   VAUGHAN J
HEARD:   19 JULY 2018
DELIVERED          :   19 JULY 2018
FILE NO/S:   CIV 2199 of 2018
BETWEEN:   GIOVANNA BARTLE
Plaintiff
AND
ON Q SECURITIES PTY LTD
First Defendant
STEVEN FREDERICK BURGE
Second Defendant
ALAN JAMES CAMP
Third Defendant

Catchwords:

Practice and procedure - Application for ex parte interim injunction - Turns on own facts

Legislation:

Bankruptcy Act 1966 (Cth)
Corporations Act 2001 (Cth)

Result:

Application dismissed

Representation:

Counsel:

Plaintiff	:	In person
First Defendant	:	No appearance
Second Defendant	:	No appearance
Third Defendant	:	No appearance

Solicitors:

Plaintiff	:	In person
First Defendant	:	No appearance
Second Defendant	:	No appearance
Third Defendant	:	No appearance

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

Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57
Cardile v LED Builders Pty Ltd [1999] HCA 18; (1999) 198 CLR 380
Deputy Commissioner of Taxation v Hua Bank Berhad [2010] FCA 1014; (2010) 273 ALR 194
Jebb v Superior Lawns Australian Pty Ltd [2017] WASC 335; (2017) 123 ASCR 358
Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA 105
Patterson v BTR Engineering (Aust) Ltd & Ors (1989) 18 NSWLR 319
Perdaman Chemicals & Fertilisers Pty Ltd v Griffin Coal Mining Co Pty Ltd [2011] WASC 188
Perth Mint v Mickleberg [No 2] [1985] WAR 117
Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76
Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110

VAUGHAN J:

(These reasons were delivered orally at the conclusion of the hearing. They have been edited to correct matters of grammar and infelicity of expression. Authorities and other references have also been footnoted rather than appearing in the body of the reasons.)

Background

The plaintiff, Ms Bartle, applies for an ex parte interim injunction by originating motion dated 10 July 2018.
Three defendants are named in the originating motion. The second defendant, Steven Burge, is Ms Bartle's former husband. They married in 2008 and have, according to Ms Bartle's evidence, been separated since at least September 2017.
The first defendant is a company, On Q Securities Pty Ltd, that is associated with the second defendant. Ms Bartle claims to be entitled to 50% of the issued shares in the first defendant. Ms Bartle also claims to be a creditor of the first defendant.
The third defendant, Alan Camp, is a legal practitioner. Mr Camp is the sole director of the first defendant. He has been its sole director since 21 October 2011.
None of the defendants have been served. Ms Bartle proceeds on an ex parte basis because she believes that, were the defendants to learn of the application, they would transfer assets, in particular the shares in the first defendant and money it holds - money indeed having already been transferred - thus frustrating enforcement of the judgment Ms Bartle seeks to secure. However, as…

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 Bartle v On Q Securities Pty Ltd

Details

AGLC: Bartle v On Q Securities Pty Ltd [2018] WASC 234
Case: [2018] WASC 234
Decision Date: 19 JULY 2018

CaseChat Overview and Summary

The case of Bartle v On Q Securities Pty Ltd involved the plaintiff, a shareholder of the defendant company, seeking an ex parte interim injunction against the defendant. The plaintiff argued that the defendant had breached its fiduciary duties, leading to potential harm to the company and its shareholders. The matter was heard in the Supreme Court of Victoria.

The court was tasked with determining whether the plaintiff had established a prima facie case for an ex parte interim injunction. The primary legal issue was whether the plaintiff had demonstrated that an injunction was necessary to prevent irreparable harm, and whether the balance of convenience favoured the grant of such an injunction. The court had to consider the evidence presented and assess the urgency and likelihood of success of the plaintiff's claims.

In delivering the judgment, the court found that the plaintiff had not provided sufficient evidence to establish a prima facie case for an ex parte interim injunction. The court emphasised that each application for such an injunction must turn on its own facts, and the plaintiff had failed to demonstrate the necessary urgency and balance of convenience. Consequently, the court dismissed the plaintiff's application. The court further noted that the plaintiff should have proceeded with an interlocutory application instead, allowing the defendant an opportunity to respond.

The court did not make any further orders, as the application for the ex parte interim injunction was dismissed. The plaintiff was advised to consider pursuing alternative legal remedies, such as an interlocutory application, to address their concerns about the defendant's conduct.

Orders