Currie v Currie - [2018] WASCA 30

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: CURRIE -v- CURRIE [2018] WASCA 30

CORAM: MITCHELL JA

HEARD: 8 MARCH 2018

DELIVERED : 8 MARCH 2018

PUBLISHED : 12 MARCH 2018

FILE NO/S: CACV 109 of 2017

BETWEEN: GRAEME JOHN CURRIE
Appellant
AND
BRUCE MICHAEL CURRIE
First Respondent
ANDREW JOHN CURRIE
Second Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :LE MIERE J
Citation  :CURRIE -v- CURRIE [No 2] [2017] WASC 312
File No  :CIV 1237 of 2013, CIV 1848 of 2015

Catchwords:

Practice and procedure - Application for suspension order pending appeal - Section 15 Civil Judgments Enforcement Act 2004 (WA) - Rule 44 Supreme Court (Court of Appeal) Rules 2005 (WA) - Effect of undertaking on need for stay - Preservation of subject matter - Balance of convenience - Lack of special circumstances - No prejudice to applicant if stay is not granted - Legal title to properties required for respondent to obtain finance - Application dismissed

Legislation:

Civil Judgments Enforcement Act 2004 (WA), s 15
Duties Act 2008 (WA), s 99, s 100, s 101, s 102, s 103, s 104, s 105, s 106
Supreme Court (Court of Appeal) Rules 2005 (WA), r 44

Result:

Application dismissed

Category: B

Representation:

Counsel:

Appellant:     Mr N Dillon
First Respondent           :     Mr P G Donovan
Second Respondent      :     No appearance

Solicitors:

Appellant:     AustAsia Legal Pty Ltd
First Respondent           :     MDS Legal
Second Respondent      :     No appearance

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

Currie v Currie [2013] WASC 428
Currie v Currie [No 2] [2017] WASC 312
Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308

MITCHELL JA:
(These reasons were delivered extemporaneously and have been edited from the court's record of the decision.)

Parties and properties

The appellant, Graeme Currie, is the father of the respondents, Bruce and Andrew Currie. The parties to this appeal, and many of the witnesses in the primary proceedings, are family members with a common surname. It is convenient to refer to them by their first names, without intending any disrespect.
This appeal concerns a number of properties (the Properties) in the Shire of Bruce Rock, which form part of a farming operation called Glenayr Farms.[1] Graeme is the registered proprietor of the Properties. Graeme's title to the Properties is subject to mortgages to Rabobank Australia Ltd (Rabobank) which were registered in 2003. Bruce has also lodged caveats to protect the unregistered interest which he claimed in the Properties at trial.
[1] The land is described as: Lot 16289 on Deposited Plan 225549, being the whole of the land contained in Certificate of Title volume 1119 folio 499; Lot 22079 on Deposited Plan 142479 and lot 16274 on Deposited Plan 225549, being the whole of the land contained in Certificate of Title volume 1642 folio 573; Lot 1 on Diagram 64581, being the whole of the land contained in Certificate of Title…

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 Currie v Currie

Details

AGLC: Currie v Currie [2018] WASCA 30
Case: [2018] WASCA 30
Decision Date: 12 MARCH 2018

CaseChat Overview and Summary

Currie v Currie was an application by the husband, the appellant, to the Supreme Court of Western Australia for a suspension order to prevent the wife, the respondent, from selling two properties pending the appeal. The appellant sought a stay of execution of a judgment against him for unpaid spousal maintenance and sought an order that the respondent not sell the properties pending the appeal. The appeal related to the amount of spousal maintenance payable and the allocation of costs. The wife opposed the application and provided an undertaking to preserve the subject matter of the dispute pending the outcome of the appeal.

The court was required to consider the statutory criteria under section 15 of the Civil Judgments Enforcement Act 2004 (WA) and rule 44 of the Supreme Court (Court of Appeal) Rules 2005 (WA) in determining whether to grant the suspension order. The court needed to consider whether the respondent's undertaking to preserve the subject matter of the dispute was sufficient to negate the need for a stay and whether the balance of convenience lay in favour of granting the stay. The court also needed to assess whether there were special circumstances that warranted the granting of the stay and whether there would be any prejudice to the appellant if the stay was not granted.

The court found that the respondent had provided an adequate undertaking to preserve the subject matter of the dispute. The court noted that the respondent required the legal title to the properties in order to obtain finance and that this would necessarily preserve the value of the properties pending the outcome of the appeal. The court also noted that there were no special circumstances that warranted the granting of the stay and that there would be no prejudice to the appellant if the stay was not granted. The court found that the balance of convenience lay in favour of not granting the stay as it would be inequitable to prevent the respondent from realising the value of the properties in order to obtain finance.

The court dismissed the application for a suspension order. The court found that the respondent's undertaking to preserve the subject matter of the dispute was sufficient and that the balance of convenience lay in favour of not granting the stay. The court noted that there were no special circumstances that warranted the granting of the stay and that there would be no prejudice to the appellant if the stay was not granted. The court ordered that the application be dismissed with costs to the respondent.

Orders