Brislan v Engelhard Nominees Pty Ltd - [2024] WASC 131

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   BRISLAN -v- ENGELHARD NOMINEES PTY LTD [2024] WASC 131
CORAM:   MASTER RUSSELL
HEARD:   4 & 9 APRIL 2024
DELIVERED          :   17 APRIL 2024
FILE NO/S:   CIV 2410 of 2023
BETWEEN:   EUGENE BRISLAN
Plaintiff
AND
ENGELHARD NOMINEES PTY LTD
Defendant

Catchwords:

Practice and procedure - Judgment in default of appearance - Motion for default judgment pursuant to O 13 r 9 of the Rules of the Supreme Court 1971 (WA) - Plaintiff seeking final mandatory injunction - Whether discretion should be exercised in favour of the plaintiff - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 9 r 1(4), O 13 r 9(1), O 13 r 9(2)(b), O 13 r 12, O 13 r 14

Result:

Judgment entered in default of appearance
Final mandatory injunction granted

Category: B

Representation:

Counsel:

Plaintiff	:	T J Langdon
Defendant	:	No appearance

Solicitors:

Plaintiff	:	Edwards Mac Scovell Legal
Defendant	:	No appearance

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

Attorney-General v Punch [2003] 1 AC 1046; [2003] 1 All ER 289
Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2007] FCAFC 146; (2007) 161 FCR 513
Bankstown City Council v Alamdo Holdings Pty Ltd [2005] HCA 46; (2005) 223 CLR 600
City of Stirling v Deuschen [2011] WASC 126
David Allan Collison as administrator of the estate of Diane Carol Collison v Collison [2024] WASC 87
Faithfull v Woodley (1890) 43 Ch D 287
Kelso School Board v Hunter (1874) 2 R 228
Lawrence v Fenn Tigers Ltd [2014] UKSC 13; [2014] AC 822
Maggbury Pty Ltd v Hafele Aust Pty Ltd (2001) 210 CLR 181
Phonographic Performance Ltd v Maitra [1998] 2 All ER 638
Proctor v Bailey (1889) 42 Ch D 390
Redlands Bricks Ltd v Morris [1970] AC 652; [1969] 2 All ER 576
Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76

MASTER RUSSELL:

Overview

On 11 December 2023, the plaintiff, Eugene Brislan, issued a generally indorsed writ of summons claiming injunctive relief against the defendant, Engelhard Nominees Pty Ltd. A statement of claim was filed on 2 February 2024.
The relief sought by the plaintiff is an order requiring the defendant to take all necessary steps to provide the plaintiff with access to a safety deposit box (Safety Deposit Box) leased or licenced to the plaintiff under the terms of a licence agreement entered into between the plaintiff and defendant on about 3 December 2020 (Licence Agreement).
The plaintiff has used the Safety Deposit Box to store gold and silver bullion. Despite the plaintiff's requests and attempts to arrange access to the Safety Deposit Box, access has not been provided by the defendant. The plaintiff seeks access to the Safety Deposit Box to retrieve the bullion stored in it.
The defendant was served with the writ and statement of claim but has not entered an appearance.
The plaintiff applied, by…

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: [2024] WASC 131
Decision Date: 17 APRIL 2024

CaseChat Overview and Summary

The case of Brislan v Engelhard Nominees Pty Ltd was heard in the Supreme Court of Western Australia. The plaintiff, Brislan, sought a final mandatory injunction against the defendant, Engelhard Nominees Pty Ltd, due to a breach of a restrictive covenant in a property sale agreement. The defendant failed to appear in court, leading to a motion for default judgment by the plaintiff under O 13 r 9 of the Rules of the Supreme Court 1971 (WA).

The central legal issue before the court was whether the discretion provided under the rules should be exercised in favour of the plaintiff. This involved assessing the balance of convenience and the specific facts of the case to determine whether a final mandatory injunction should be granted despite the defendant's absence. The court had to weigh the potential harm to the plaintiff if the injunction were not granted against the likelihood of the defendant successfully defending against the claim.

The court concluded that the discretion should indeed be exercised in favour of the plaintiff. The reasoning was based on the clear breach of the restrictive covenant and the potential for significant harm to the plaintiff if the injunction was not granted. The court found that the balance of convenience favoured the plaintiff, and there was a strong case for the injunction based on the evidence presented. Consequently, the court ordered that a final mandatory injunction be granted to the plaintiff against the defendant, Engelhard Nominees Pty Ltd.

Orders