Ex Parte - [2021] WASC 288

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   QMW INVESTMENT PTY LTD; EX PARTE CHRISTINA HILLIER as trustee for CHRISTINA AND ROBERT HILLIER FAMILY TRUST [2021] WASC 288
CORAM:   ACTING PRINCIPAL REGISTRAR MCDONALD
HEARD:   12 AUGUST 2021
DELIVERED          :   24 AUGUST 2021
FILE NO/S:   CIV 1086 of 2020

QMW INVESTMENT PTY LTD
Plaintiff
EX PARTE
CHRISTINA HILLIER as trustee for CHRISTINA AND ROBERT HILLIER FAMILY TRUST
ROBERT HILLIER as trustee for CHRISTINA AND ROBERT HILLIER FAMILY TRUST
First Defendants
ROBERT JOHN HILLIER
Second Defendant
ELIZABETH MACKENZIE
Third Defendant
CHONG LEONG CHOE
Fourth Defendant

Catchwords:

Practice and procedure - Subpoena - Leave to issue subpoena - No defence filed - Default judgment entered against defendant - Defendant applies to set aside default judgment - No exceptional circumstances

Legislation:

Bankruptcy Act 1966 (Cth)
Corporations Act 2001 (Cth)
Rules of the Supreme Court 1971 (WA)

Result:

Leave refused

Category: B

Representation:

Counsel:

Plaintiff	:	Mr K Dundo
First Defendants	:	No appearance
Second Defendant	:	No appearance
Third Defendant	:	No appearance
Fourth Defendant	:	No appearance

Solicitors:

Plaintiff	:	KD Legal (Perth)
First Defendants	:	McKenzie & McKenzie & In Person
Second Defendant	:	No appearance
Third Defendant	:	Robertson Hayles Lawyers
Fourth Defendant	:	Robertson Hayles Lawyers

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

Crayden v Ottaviano [2003] WASCA 20
Palmer v Prince [1980] WAR 61
Sandy v Yindjibarndi Aboriginal Corp RNTBC [2019] WASC 322
Song v South Beach Management Pty Ltd [2020] WASC 402
Stanley v Layne Christensen Co [2004] WASCA 50
Starrs v Retravision (WA) Ltd [2012] WASCA 67
TSW Analytical Pty Ltd v University of Western Australia [2017] WASCA 67
Vautier Holdings Pty Ltd v Kagioulis Trading Pty Ltd [2014] WASC 209
Wildflower Electrical Refrigeration Service (WA) v Refrigid Pty Ltd [2014] WASC 382

ACTING PRINCIPAL REGISTRAR MCDONALD:

The plaintiff seeks leave to issue a subpoena prior to the filing of a defence in the action pursuant to Order 36B rule 2(2B)(b)(ii) of the Rules of the Supreme Court 1971 (WA) (RSC). For the reasons that follow I decline to grant leave.

Background

These proceedings were commenced by writ indorsed by Statement of Claim dated 20 January 2020 (the Writ). The Statement of Claim was amended on 21 December 2020. The first and second named first defendants are Christina Hillier and Robert Hillier in their capacities as trustees of the Christina and Robert Hillier Family Trust. With no disrespect intended to the parties I will refer to the first and second named first defendants as Christina and Robert respectively. Christina and Robert are married. Robert is an undischarged bankrupt.[1]
[1] Affidavit of Christina Hillier sworn 6 July 2021 (Hillier Affidavit) [3], [31].
On 11 September 2017, the plaintiff as lender and mortgagee entered into a loan agreement with Christina and Robert as trustees of the Christina and Robert Hillier Family Trust (the Trust),[2] pursuant to which the plaintiff advanced the sum of $1,500,000 to the Trust.[3] The loan was secured by a registered mortgage over a mortgaged…

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 Ex Parte

Details

AGLC: Ex Parte [2021] WASC 288
Case: [2021] WASC 288
Decision Date

CaseChat Overview and Summary

In Ex Parte QMW Investment Pty Ltd, the Acting Principal Registrar McDonald addressed an application for leave to issue a subpoena before a defence was filed in the proceedings. The plaintiff sought leave to issue a subpoena to the Commonwealth Bank of Australia for bank statements, authorised signatories, and correspondence documents relating to an account associated with the defendants. The application arose from a default judgment entered against Christina Hillier, who, along with her husband Robert Hillier, was a trustee of the Christina and Robert Hillier Family Trust. The default judgment was entered due to their failure to appear and defend against the plaintiff's claims regarding a loan agreement. Christina applied to set aside the default judgment, asserting she was not a party to the loan agreement and did not sign it as a party or trustee.

The court considered whether there were exceptional circumstances to justify issuing the subpoena before a defence was filed, as required by RSC Order 36B rule 2(2D). The plaintiff argued that the subpoena was necessary to contradict Christina's affidavit statements and to address inconsistencies in her claims. However, the court found that the plaintiff's submissions did not establish any exceptional circumstances. The court held that the subpoena's necessity to contradict Christina's affidavit statements did not constitute an unusual or out-of-the-ordinary situation. Additionally, the court found that the plaintiff's reliance on Christina's control of the bank account and her role as the appointer of the trust did not sufficiently establish exceptional circumstances. The court concluded that the documents sought by the subpoena did not directly address the merits of Christina's defence, which focused on her capacity as a trustee and her signature on the loan agreement.

Therefore, the Acting Principal Registrar declined to grant leave to issue the subpoena, stating that there were no exceptional circumstances to warrant such action before a defence was filed. The decision underscores the necessity for the party seeking leave to demonstrate specific, unusual, or out-of-the-ordinary circumstances that justify the pre-defence issuance of a subpoena.

Orders