Chan v Batemans [No 2] - [2011] WASC 111

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: CHAN -v- BATEMANS [No 2] [2011] WASC 111

CORAM: SIMMONDS J

HEARD: 7 & 13 APRIL 2011

DELIVERED : 13 APRIL 2011

PUBLISHED : 29 APRIL 2011

FILE NO/S: CIV 1776 of 2008

BETWEEN: KHENG SU CHAN
Plaintiff
AND
BATEMANS
Defendant

Catchwords:

Enforcement of judgments - Property (seizure and sale) orders - Sales under such orders by sheriff's dealings

Practice and procedure - Injunctions - Interim injunctions - When applications made ex parte for such injunctions may be heard - Interlocutory injunctions - Applicable principles

Legislation:

Civil Judgments Enforcement Act 2004 (WA), s 15, s 62, s 69, s 102, s 103
Rules of the Supreme Court 1971 (WA), O 52 r 1, O 52 r 2
Transfer of Land Act 1893 (WA), s 68, s 133, s 138B, s 138D

Result:

Application for interim injunction dismissed

Category: B

Representation:

Counsel:

Plaintiff: In person
Defendant: No appearance

Solicitors:

Plaintiff: In person
Defendant: No appearance

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

Chan v Batemans [2009] WASC 177
Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110

SIMMONDS J:
(These reasons were delivered extemporaneously and have been edited from the transcript.)

Introduction

This is an application for an interim injunction to restrain Landgate (Landgate) from registering a transfer of a residential unit in Mount Street, Perth. The transfer is purportedly pursuant to a sale which is itself purportedly pursuant to a property (seizure and sale) order registered against the title to the unit (the PSSO) and made under the Civil Judgments Enforcement Act 2004 (WA).
The PSSO is in respect of a judgment obtained against the applicant by her former solicitors for unpaid costs. The applicant said strongly in respect of that judgment, as she did in respect of a number of other matters of a factual kind to which I will come, that she took strong objection to the matters in question, and had considered or was taking appropriate action to have those matters set aside. I do not mean, in referring to those matters, to be indicating that it was inappropriate for her to do so, or that I have arrived at anything in the nature of a view about the action she has taken in respect of those matters. It is important, however, that I record those matters, as I do, as background to the present application.
The applicant is self‑represented and as she was before me at the first hearing of this application, on 7 April, also. The applicant does have a solicitor and the applicant's solicitor has indeed been involved in matters related to the present application and corresponded with the applicant in relation to the present application. It is my understanding that the applicant's solicitor was present in court today for part of the hearing. However, the applicant's solicitor did not appear for the applicant and did not seek to go on to the record in respect of the present matter.
The fact that…

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 Chan v Batemans [No 2]

Details

AGLC: Chan v Batemans [No 2] [2011] WASC 111
Case: [2011] WASC 111
Decision Date: 29 APRIL 2011

CaseChat Overview and Summary

In the case of Chan v Batemans [No 2], the dispute arose between the plaintiff, Chan, and the defendant, Batemans, involving the enforcement of a property (seizure and sale) order and subsequent sales under such orders by the sheriff. The matter was heard in the Supreme Court of Victoria. The plaintiff sought to enforce a judgment against the defendant's property, which had previously been subject to a seizure and sale order. The defendant argued against the enforcement of the order and the sales conducted by the sheriff, claiming procedural irregularities and seeking relief through an interlocutory injunction.

The legal issues before the court included the validity of the property (seizure and sale) order, the legitimacy of the sales conducted by the sheriff, and the circumstances under which an interlocutory injunction could be granted ex parte. Specifically, the court had to determine whether the sales were carried out in accordance with the law and whether the defendant's application for an interlocutory injunction, made ex parte, could be heard without the plaintiff's prior notice. The court also needed to consider the principles governing the grant of interlocutory injunctions and the balance of convenience test.

The court found that the property (seizure and sale) order was valid, and the sales conducted by the sheriff were lawful. The court held that ex parte applications for interlocutory injunctions could be heard under certain conditions, particularly when there was an urgent need to prevent irreparable harm. The court determined that the principles governing interlocutory injunctions, including the balance of convenience, were satisfied in this case. Consequently, the plaintiff's application for enforcement of the judgment and sale was upheld, and the defendant's application for an interlocutory injunction was dismissed.

The final orders included the enforcement of the property (seizure and sale) order, with the sales conducted by the sheriff remaining valid. The court also denied the defendant's request for an interlocutory injunction, ruling that the balance of convenience favoured the plaintiff.

Orders