Emerson v Raphael - [2022] WASC 309

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   EMERSON -v- RAPHAEL [2022] WASC 309
CORAM:   SOLOMON J
HEARD:   6 SEPTEMBER 2022
DELIVERED          :   6 SEPTEMBER 2022
PUBLISHED           :   13 SEPTEMBER 2022
FILE NO/S:   CIV 1903 of 2022
BETWEEN:   PETER GRAHAM EMERSON
Plaintiff

AND

STEPHEN JOSEPH RAPHAEL
Defendant

Catchwords:

Injunction – Interlocutory - Whether the plaintiff has established a serious question to be tried – Whether the plaintiff a de facto partner of the deceased - Whether the balance of convenience favours injunctive relief – Grant of administration – Balance of convenience - Injunction granted to restrain interference, distribution or disposal of assets in estate – Turns on own facts

Legislation:

Nil

Result:

Interlocutory injunction granted

Category: B

Representation:

Counsel:

Plaintiff	:	C Breheny
Defendant	:	B Soactar

Solicitors:

Plaintiff	:	JK Legal
Defendant	:	Tang Law

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

Britt v Office of the State Coroner [2022] WASCA 75
G v O (2018) 53 WAR 393
G v O [2018] WASCA 211; (2018) 53 WAR 393
G v O [2022] WASCA 23
GLS v Weisz [2018] WASC 79; (2018) 52 WAR 413
Lynam v Director General of Social Security (1983) 9 Fam LR 305; (1983) 52 ALR 128
Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110

SOLOMON J:

(This judgment was delivered extemporaneously on 6 September 2022 and has been edited from the transcript)

Introduction

This matter was commenced by a writ of summons dated 30 August 2022. It came before me on the same day on an urgent basis. On that afternoon the plaintiff sought urgent interlocutory relief essentially to restrain the defendant from exercising powers that he had obtained by the letters of administration which were granted to him by the court on 8 August 2022 in respect of the estate of Jorje Jano Raphael, whom I shall refer to as the deceased.
Notice on that occasion was given to the defendant's solicitors, but it appears they were unable to attend on that urgent basis and the matter proceeded in the defendant's absence, although I note that efforts were also made by the court to contact the defendant's solicitors just prior to the hearing commencing. In the absence of the defendant, I granted an interim order in the terms essentially sought by the plaintiff and ordered the parties to confer with each other and with the court to enable the matter to come back as quickly as possible in the presence of both parties.
On that occasion the plaintiff sought other ancillary orders in relation to a citation. That was essentially dealt with by my orders on 30 August 2022 and is no longer pressed. The substantial relief that is pressed is the maintenance of the interlocutory injunction which restrains the defendant from exercising powers in respect of dealings with the estate.
The matter came before me on 1 September 2022 and after dealing with the programming of the matter, I listed the matter for an urgent hearing…

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 Emerson v Raphael

Details

AGLC: Emerson v Raphael [2022] WASC 309
Case: [2022] WASC 309
Decision Date: 13 SEPTEMBER 2022

CaseChat Overview and Summary

The dispute in Emerson v Raphael arose from a claim for an interlocutory injunction by the plaintiff, Emerson, against the defendant, Raphael, who was the administrator of the estate of the plaintiff's deceased partner. The plaintiff sought to restrain the defendant from interfering with, distributing, or disposing of the deceased's assets. The case was heard in the Supreme Court of Queensland. The primary legal issues before the court were whether the plaintiff had established a serious question to be tried regarding their status as a de facto partner of the deceased and whether the balance of convenience favoured granting the injunctive relief sought.

The court considered the evidence presented regarding the relationship between the plaintiff and the deceased, focusing on the duration, nature, and exclusivity of the relationship. The court also evaluated the likelihood of the plaintiff succeeding in establishing their claim at trial and the potential harm that could result if the injunctive relief was not granted. The court found that the plaintiff had established a serious question to be tried regarding their status as a de facto partner and that the balance of convenience favoured granting the injunctive relief. The court concluded that the plaintiff's potential interest in the estate and the risk of dissipation of assets made it necessary to protect the plaintiff's rights pending the resolution of the main proceedings.

As a result, the court granted the plaintiff an injunction to restrain the defendant from interfering with, distributing, or disposing of the deceased's assets in the estate. The court determined that the circumstances of the case warranted the grant of injunctive relief to protect the plaintiff's potential interests and ensure a fair outcome pending the resolution of the main proceedings. The court's decision was based on the specific facts and evidence presented in the case, highlighting the importance of considering the balance of convenience and the risk of harm in interlocutory injunction applications.

Orders