Ellis v Fremantle RSL Club WYOLA Inc
[2012] WASC 54
•20 FEBRUARY 2012
ELLIS -v- FREMANTLE RSL CLUB WYOLA INC [2012] WASC 54
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 54 | |
| 20/02/2012 | |||
| Case No: | CIV:3005/2010 | 22 NOVEMBER 2011 | |
| Coram: | MASTER SANDERSON | 22/11/11 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Action stayed | ||
| B | |||
| PDF Version |
| Parties: | GORDON ELLIS BEVERLEY ELLIS VICKI LOIS MURRAY FREMANTLE RSL CLUB WYOLA INC PHILLIP EDWYN GERALD DOUGLAS LINDA JANE LYONS RODNEY GORDON GLASFURD CHRISTINE MARINDA DUNBAR JOHN BARON GORDON ROSS MELLING ROBERT CHARLES WILLIAMS LUIS DA LUZ ROSS ALEXANDER McDONALD REGISTRAR OF TITLES COMMISSIONER FOR CONSUMER PROTECTION |
Catchwords: | Practice and procedure Two actions dealing with same issue Application to stay action Turns on own facts |
Legislation: | Nil |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- BEVERLEY ELLIS
VICKI LOIS MURRAY
Plaintiffs
AND
FREMANTLE RSL CLUB WYOLA INC
First Defendant
PHILLIP EDWYN GERALD DOUGLAS
Second Defendant
LINDA JANE LYONS
Third Defendant
RODNEY GORDON GLASFURD
CHRISTINE MARINDA DUNBAR
JOHN BARON GORDON
ROSS MELLING
ROBERT CHARLES WILLIAMS
LUIS DA LUZ
ROSS ALEXANDER McDONALD
Fourth Defendants
- REGISTRAR OF TITLES
Fifth Defendants
COMMISSIONER FOR CONSUMER PROTECTION
Interested Party
Catchwords:
Practice and procedure - Two actions dealing with same issue - Application to stay action - Turns on own facts
Legislation:
Nil
Result:
Action stayed
Category: B
(Page 3)
Representation:
Counsel:
Plaintiffs : Mr J M McKay
First Defendant : Mr F A Robertson
Second Defendant : Mr D R Williams QC & Mr H R Robinson
Third Defendant : Mr D R Williams QC & Mr H R Robinson
Fourth Defendants : Mr M T S Rennie
Fifth Defendants : No appearance
Interested Party : Mr C P Shanahan SC
Solicitors:
Plaintiffs : Garton Smith & Co
First Defendant : Butcher Paull & Calder
Second Defendant : Haydn Robinson
Third Defendant : Haydn Robinson
Fourth Defendants : Western Legal
Fifth Defendants : No appearance
Interested Party : Matthew Sawers Crowley
Case(s) referred to in judgment(s):
Nil
(Page 4)
1 MASTER SANDERSON: This was the return of various summonses seeking various interlocutory orders. After hearing argument, I ordered the action be stayed pending further order. I indicated I would publish reasons for that decision at a later date. These are those reasons.
2 It is convenient to begin with a brief summary of the plaintiff's claims. They say they are members of the first defendant. The second defendant was at all material times the manager of the first defendant. The third defendant is a bookkeeper employed by the first defendant and she is said to be the wife of the second defendant. The fourth defendants (with the exception of the last-named) are the committee members of the first defendant.
3 The first defendant owned property in Fremantle on which its clubhouse is located. In September 1992, the first defendant leased to the second defendant the clubhouse site. That lease contained a right of first refusal. That right of first refusal allowed the second defendant to purchase the premises for an amount of $300,000, that figure to be adjusted annually in line with the Consumer Price Index. In February 2010, the right of first refusal was exercised and the property was sold to the second and third defendants for an amount of $482,559. The plaintiffs say at the time the property was worth between $2 million and $2,500,000. The plaintiffs say as a result of this transaction the club has suffered loss and damage.
4 It is unnecessary to go into detail as to the basis upon which the plaintiffs maintain their claim. Suffice it to say they seek to have the transaction reversed and the property revert to the club. For their part, the defendants maintain the transaction was proper and appropriate and the sale of the premises was in accord with the club's constitution and untainted.
5 Before commencing these proceedings, the plaintiffs took their concerns to the Commissioner for Consumer Protection. After investigating the matter, the Commissioner determined there were grounds for taking proceedings against the second and third defendants. Those proceedings could not be issued without the approval of the first defendant. The Commissioner wrote to the first defendant seeking approval. Surprisingly enough, the first defendant granted the approval. The Commissioner has now issued proceedings. Those proceedings have not moved beyond the stage of statement of claim and defence.
(Page 5)
6 Against that background, the second and third defendants applied for summary judgment. Their main argument was the plaintiffs were not presently or at all material times members of the first defendant. It was said as a consequence they did not have standing to bring the action. In the alternative, the second and third defendants sought to strike out the statement of claim either because it was frivolous or vexatious or the proceedings were an abuse of process.
7 The plaintiffs responded by issuing a chamber summons seeking leave for the plaintiffs to proceed by way of derivative action on behalf of the club. They also sought an order the club pay the plaintiffs' costs of the proceedings (both past and future) on a full solicitor/client basis. It was argued the proceedings were being brought solely for the benefit of the club and the protection of its interests. This it was said in circumstances where the club committee had failed to act.
8 The plaintiffs also sought a joinder of the action with proceedings CIV 3003 of 2010 commenced by the Commissioner. Alternatively, they sought consolidation of the proceedings. Quite how that would have been achieved is uncertain. In any event, the Commissioner issued a summons seeking leave to intervene and opposing any joinder or consolidation.
9 The first matter to be determined was in what order the chamber summons ought be heard. After hearing argument, I determined that the second and third defendants' application for summary judgment ought be heard first. On that basis, counsel for the Commissioner sought leave to withdraw, with the Commissioner's summons to be considered when the summary judgment application had been determined. Leave was granted.
10 At the commencement of his submissions, counsel for the second and third defendants indicated his clients would be satisfied with a stay of proceedings pending determination of the Commissioner's action. Counsel submitted there was no utility in running these proceedings in parallel with the Commissioner's proceedings when the relief sought in each action was virtually identical. Counsel for the first defendant and the fourth defendants, insofar as their views were relevant, supported the second and third defendants.
11 After hearing argument, I was satisfied the proper course was to stay these proceedings. I reached that conclusion for three main reasons. First, the most cost-effective way to protect the first defendant's interests is to allow the Commissioner to conduct his action. That does not involve any expense on the part of the first defendant and does not expose the first
(Page 6)
- defendant to the risks of an adverse costs order. Counsel for the plaintiffs made it plain the action was presently being conducted pro bono and could only be maintained if an order was made against the first defendant to indemnify the plaintiffs for their costs. For the first defendant, it was said it did not have sufficient assets to indemnify the plaintiffs and to provide for the possibility of an adverse costs order. This was a compelling reason to stay the proceedings.
12 Second, there was almost an entire coincidence between the relief sought by the plaintiffs in these proceedings and the relief sought by the Commissioner in the other proceedings. Counsel for the plaintiffs did attempt to draw some distinction between the relief claimed in each action, but, essentially, it is the same. What both actions seeks to do is have restored to the first defendant the clubhouse property. Everything else is really subsidiary to that main aim. There is no compelling reason why this action is necessary independent of the action taken by the Commissioner.
13 Finally, to hear and determine the summary judgment application was to invite delay. The arguments put by the second and third defendants were not without merit. Whichever way I determined those applications, an appeal was likely. That would involve delay and expense and might not actually lead to the ultimate resolution of the action. If that process could be avoided, so much the better.
14 For these reasons, I determined the proper course was to stay the proceedings until further order. I reserved the costs of all applications.
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