Durolek v Pier (WA) Pty Ltd - [2018] WASCA 187

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   DUROLEK -v- PIER (WA) PTY LTD [2018] WASCA 187
CORAM:   MITCHELL JA
HEARD:   19 OCTOBER 2018
DELIVERED          :   19 OCTOBER 2018
PUBLISHED           :   23 OCTOBER 2018
FILE NO/S:   CACV 78 of 2018
BETWEEN:   BELINDA DUROLEK
Appellant

AND

PIER (WA) PTY LTD (ACN 609 009 270) as trustee for ISANDI TRUST
First Respondent

JEAN MAURICE PTY LTD (IN LIQUIDATION) (ACN 155 115 656)
Second Respondent

FRANCK DUROLEK
Fourth Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   KENNETH MARTIN J
Citation: PIER (WA) PTY LTD AS TRUSTEE FOR ISANDI TRUST -v- JEAN MAURICE PTY LTD (IN LIQ) [No 6] [2018] WASC 204
File Number             :   CIV 2935 of 2016

Catchwords:

Practice and procedure - Application for suspension order pending appeal - Section 15 Civil Judgments Enforcement Act 2004 (WA) - Special circumstances - Unusual features of primary court orders - No practical prejudice to first respondent if stay is granted - Limited stay granted in relation to appellant's interest in her residence

Legislation:

Civil Judgments Enforcement Act 2004 (WA), s 15

Result:

Application granted in part

Category: B

Representation:

Counsel:

Appellant	:	Mr L A Warnick
First Respondent	:	Mr K A Dundo
Second Respondent	:	No appearance
Fourth Respondent	:	No appearance

Solicitors:

Appellant	:	Havilah Legal
First Respondent	:	KD Legal (Perth)
Second Respondent	:	No appearance
Fourth Respondent	:	No appearance

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

Currie v Currie [2018] WASCA 30
Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
Firmware Technologies Inc v Asia Platinum Group Ltd [2016] WASCA 179; (2016) 50 WAR 453
Pier (WA) Pty Ltd v Jean Maurice Pty Ltd [2018] WASC 22
Pier (WA) Pty Ltd v Jean Maurice Pty Ltd [No 2] [2018] WASC 23
Pier (WA) Pty Ltd v Jean Maurice Pty Ltd [No 3] [2018] WASC 24

MITCHELL JA:

At the conclusion of the hearing of the appellant's application for a suspension order, I ordered that, until the determination of this appeal or further order, enforcement of the judgment debt is suspended in relation to the appellant's interest in her Mandurah residence. These are my reasons for making that order.

Background

Acquisition of businesses by Pier and subsequent claim

On 26 August 2016, the first respondent (Pier) acquired two businesses from the second respondent and the former third respondent, Sancho Bakery Pty Ltd (Jean Maurice and Sancho Bakery, collectively the Vendors). Pier paid $1.8 million for those businesses.[1] At the time of the acquisition, the fourth respondent (Mr Durolek) was the sole director and secretary of Jean Maurice and Sancho Bakery.[2] The appellant (Mrs Durolek) is married to Mr Durolek and was a director of Jean Maurice until March 2016.[3] Mr Durolek had deposed that he owned all of the shares in Jean Maurice. Mr and Mrs Durolek both deposed that they…

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.

Keep reading for free

Create a free CaseChat account to read Durolek v Pier (WA) Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] WASCA 187
Decision Date: 23 OCTOBER 2018

CaseChat Overview and Summary

In Durolek v Pier (WA) Pty Ltd, the applicant sought a suspension order pending appeal against a judgment enforcing a foreign judgment obtained by the respondent. The primary judgment, rendered in the Supreme Court of Western Australia, mandated the sale of the applicant's residence to satisfy a debt owed to the respondent. The case reached the Court of Appeal, where the applicant applied for a stay of execution pending the determination of the appeal. The primary issue before the Court of Appeal was whether the applicant could demonstrate the "special circumstances" required under Section 15 of the Civil Judgments Enforcement Act 2004 (WA) to warrant a stay of the enforcement of the primary judgment.

The Court of Appeal examined whether the applicant had shown that there were unusual features in the primary court orders that warranted a stay, and whether there would be no practical prejudice to the respondent if the stay was granted. The Court considered the applicant's argument that the sale of the residence would cause significant hardship and that there was a substantial prospect of success on appeal. The Court also weighed the respondent's argument that the sale of the property was a straightforward enforcement of a valid foreign judgment, and that the applicant had not shown any unusual features in the primary judgment that would warrant a stay. Ultimately, the Court found that the unusual feature of the primary judgment, being the sale of the applicant's residence, and the lack of practical prejudice to the respondent if the stay was granted, met the threshold for a limited stay in relation to the applicant's interest in her residence.

The Court of Appeal granted a limited stay of execution in relation to the applicant's interest in her residence. This decision allowed the applicant to maintain possession of her residence while the appeal was being determined, subject to the respondent providing security for the debt. The Court emphasised that the stay was limited to the applicant's interest in the residence, and that the respondent could still enforce the primary judgment in relation to any other assets of the applicant. The Court also noted that the stay was not a final determination of the appeal, and that the applicant would still need to establish her case on the merits of the appeal. The final orders of the Court of Appeal included a limited stay of execution in relation to the applicant's interest in her residence, subject to the respondent providing security for the debt, and the applicant being required to provide an undertaking as to damages in the event the appeal was ultimately unsuccessful.

Orders