BOWESCO PTY LTD -v- WESTPOINT MANAGEMENT LTD [2015] WASCA 184

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2015] WASCA 184
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:78/2014	Heard:	3 AUGUST 2015
Coram:	McLURE P BUSS JA NEWNES JA	Delivered:	11/09/15
No of pages:	21	Judgment Part:	1 of 1
Result:	Leave to add grounds 7 and 8 refused Appeal dismissed
Category:	B
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Parties:	BOWESCO PTY LTD WESTPOINT MANAGEMENT LTD (in liq) (Receivers and Managers Appointed)
Catchwords:	Contract Construction of finance facility agreement and guarantee Scope and application of the doctrine of subrogation
Legislation:	Corporations Act 2001 (Cth)
Case References:	Barnes v Addy (1874) LR 9 Ch App 244 Bofinger v Kingsway Group Ltd [2009] HCA 44; (2009) 239 CLR 269 Evandale Estates Pty Ltd v Keck [1963] VR 647 Giumelli v Giumelli [1999] HCA 10; (1999) 196 CLR 101 Re Dalma No 1 Pty Ltd (in liq) (2013) 279 FLR 80 Sunbird Plaza Pty Ltd v Maloney[1988] HCA 11; (1988) 166 CLR 245 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : BOWESCO PTY LTD -v- WESTPOINT MANAGEMENT LTD [2015] WASCA 184 CORAM : McLURE P

BUSS JA

NEWNES JA

HEARD : 3 AUGUST 2015 DELIVERED : 11 SEPTEMBER 2015 FILE NO/S : CACV 78 of 2014 BETWEEN : BOWESCO PTY LTD

Appellant

AND

WESTPOINT MANAGEMENT LTD (in liq) (Receivers and Managers Appointed)

Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : CHANEY J

Citation : BOWESCO PTY LTD -v- WESTPOINT MANAGEMENT LTD [No 2] [2014] WASC 207

File No : CIV 2092 of 2012

Catchwords:

Contract - Construction of finance facility agreement and guarantee - Scope and application of the doctrine of subrogation

Legislation:

Corporations Act 2001 (Cth)

Result:

Leave to add grounds 7 and 8 refused

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : Mr A Metaxas

Respondent : Mr J C Vaughan SC

Solicitors:

Appellant : Metaxas & Hager

Respondent : Clayton Utz

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

Barnes v Addy (1874) LR 9 Ch App 244
Bofinger v Kingsway Group Ltd [2009] HCA 44; (2009) 239 CLR 269
Evandale Estates Pty Ltd v Keck [1963] VR 647
Giumelli v Giumelli [1999] HCA 10; (1999) 196 CLR 101
Re Dalma No 1 Pty Ltd (in liq) (2013) 279 FLR 80
Sunbird Plaza Pty Ltd v Maloney[1988] HCA 11; (1988) 166 CLR 245
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165

1 McLURE P: This appeal concerns whether the appellant (Bowesco) is entitled to be paid the sum of $550,000 and interest from the proceeds of sale of the assets of Lanepoint Enterprises Pty Ltd (Lanepoint) received by the respondent (Westpoint) under its second ranking security over Lanepoint's assets.

2 The first ranking security was held by Suncorp-Metway Ltd (Suncorp). Bowesco…

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: [2015] WASCA 184
Decision Date: 11 SEPTEMBER 2015

CaseChat Overview and Summary

Bowesco Pty Ltd appealed against a decision of the Supreme Court of Queensland, which had dismissed their claim for a declaration that Westpoint Management Ltd was not entitled to exercise its rights of subrogation. The primary dispute centred around the interpretation of a finance facility agreement and a guarantee that Bowesco had provided to Westpoint. The central issue was whether the guarantor was estopped from exercising its rights of subrogation against Bowesco.

The court was required to determine the correct interpretation of the relevant clauses in the finance facility agreement and the guarantee, specifically focusing on whether the agreement contained a term that would prevent the guarantor from exercising its rights of subrogation. The court also needed to assess whether Bowesco was estopped from denying the enforceability of the guarantee and whether there was any basis to challenge the enforceability of the guarantee itself.

In its decision, the Court of Appeal held that the finance facility agreement did not contain any express term that would prevent Westpoint from exercising its rights of subrogation. The court found that Bowesco had not established any grounds for estoppel, and therefore, Westpoint was entitled to exercise its rights of subrogation. The appeal was dismissed, and leave to add new grounds was refused. Consequently, the original decision of the Supreme Court of Queensland was upheld.

Orders

Orders of the court

Leave to add grounds 7 and 8 refused

Appeal dismissed

Background

Background to the litigation

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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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