Central Exploration Pty Ltd v Zuks - [2020] WASC 46

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   CENTRAL EXPLORATION PTY LTD -v- ZUKS [2020] WASC 46
CORAM:   ALLANSON J
HEARD:   18 DECEMBER 2019
DELIVERED          :   21 FEBRUARY 2020
FILE NO/S:   CIV 2917 of 2017
BETWEEN:   CENTRAL EXPLORATION PTY LTD
First Plaintiff
CENTRAL AREAS LTD
Second Plaintiff
RTG MINING INC
Third Plaintiff
AND
NIKOLAJS ZUKS aka NIKS ZUKS, NICHOLAIS ZUKS, NICHOLAS ZUKS, NIKOLIS ZUKS AND NIKOLAIS ZUKS
First Defendant
KALIA HOLDINGS PTY LTD
Second Defendant
KALIA LTD
Third Defendant
DAVID ALBERT LLOYD JOHNSTON
Fourth Defendant

TERRENCE ARTHUR LARKAN
Fifth Defendant
ADAM NIKOLAIS ZUKS
Sixth Defendant

Catchwords:

Practice and procedure - Application to extend time to file application for summary judgment - Where application based on possible failure of condition precedent - Whether time should be extended to enable application at indefinite future time

Practice and procedure - Application by defendant to be released from undertaking given voluntarily in response to plaintiffs' application for interim injunction - Where information on application for injunction incomplete - Where undertaking in force for more than two years - Where the plaintiffs' position has materially changed since undertakings given - Where difficulties in enforcement of undertaking

Practice and procedure - Application to strike out pleadings for failure to disclose a reasonable cause of action

Practice and procedure - Application to strike out - Where plaintiffs plead matters which have arisen since issue of writ

Practice and procedure - Where defendants apply to strike out claims on ground that they may prejudice, embarrass or delay the fair conduct of the proceedings - Whether allegation of dishonest or unlawful conduct pleaded with sufficient clarity and precision - Whether plaintiff should be given leave to re‑plead

Practice and procedure - Where defendant applies for order requiring plaintiff to write and send letter to third party in terms provided by defendant - Where defendant has brought no counterclaim - Whether application in effect for mandatory injunction

Legislation:

Corporations Act 2001 (Cth), s 1317H, pt 1.2 div 2
Partnership Act 1895 (WA), s 7
Rules of the Supreme Court 1971 (WA), O 14 r 1, O 20 r 10, O 20 r 19, O 37 r 6

Result:

Application to extend time for strike out application dismissed
Application to strike out granted in part
Plaintiff to have leave to re-plead
Application to be released from undertaking granted
Application for order requiring letter to third party dismissed

Category: B

Representation:

Counsel:

First Plaintiff	:	A Rumble & M L Bennett
Second Plaintiff	:	A Rumble & M L Bennett
Third Plaintiff	:	A Rumble & M L Bennett
First Defendant	:	M P Bruce
Second Defendant	:	A Pieterse
Third Defendant	:	A Pieterse
Fourth Defendant	:	A Mossop & S M Davies SC
Fifth Defendant	:	No appearance
Sixth Defendant	:	M P Bruce

Solicitors:

First Plaintiff	:	Bennett + Co
Second Plaintiff	:	Bennett + Co
Third Plaintiff	:	Bennett + Co
First Defendant	:	Bruce Legal Consultants (Perth)
Second Defendant	:	Tottle Partners
Third Defendant	:

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: [2020] WASC 46
Decision Date: 21 FEBRUARY 2020

CaseChat Overview and Summary

The matter before the court was an application by Central Exploration Pty Ltd (the plaintiff) against Zuks (the defendant) concerning various procedural and substantive issues in a mining-related dispute. The plaintiff sought an extension of time to file an application for summary judgment, the release from an undertaking given in response to an application for an interim injunction, and the striking out of certain claims made by the defendant. The defendant, in turn, sought relief from the undertaking and the striking out of certain claims by the plaintiff on various grounds.

The primary legal issues before the court involved the interpretation and application of procedural rules in the context of the plaintiff's summary judgment application, the enforceability of the undertaking given in response to the interim injunction application, and the validity of the claims made by both parties. The court had to determine whether the plaintiff's application for an extension of time was justified, whether the defendant should be released from the undertaking, and whether certain claims should be struck out due to procedural deficiencies or potential prejudice to the defendant.

The court found that the plaintiff's application for an extension of time should be denied, as it was not clear when, or if, the condition precedent would be satisfied. The court held that the defendant should be released from the undertaking, as the plaintiff's position had materially changed and it was difficult to enforce the undertaking. The court also struck out certain claims made by the defendant, finding that they did not disclose a reasonable cause of action and could prejudice the fair conduct of the proceedings. The court denied the plaintiff's request to re-plead, finding that the claims were insufficiently clear and precise. Lastly, the court rejected the defendant's application to require the plaintiff to write a letter to a third party, finding that it was effectively an application for a mandatory injunction, which was not supported by the defendant's lack of a counterclaim.

The court ordered that the plaintiff's application for an extension of time be dismissed, the defendant be released from the undertaking, certain claims by the defendant be struck out, and the plaintiff's request to re-plead be denied. The court also dismissed the defendant's application to require the plaintiff to write and send a letter to a third party.

Orders