FLETCHER & ANOR -v- OULD PTY LTD [2001] WASC 181

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASC 181
Case No:	CIV:2628/2000	Heard:	5 JULY 2001
Coram:	MASTER BREDMEYER	Delivered:	9/07/01
No of pages:	4	Judgment Part:	1 of 1
Result:	Application refused
PDF Version

Parties:	BRIAN FLETCHER BAYSILK HOLDINGS PTY LTD OULD PTY LTD (ACN 009 408 584)
Catchwords:	Application to dismiss action
Legislation:	Nil
Case References:	Fletcher & Anor v Ould [2000] WASC 322 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : FLETCHER & ANOR -v- OULD PTY LTD [2001] WASC 181 CORAM : MASTER BREDMEYER HEARD : 5 JULY 2001 DELIVERED : 9 JULY 2001 FILE NO/S : CIV 2628 of 2000 BETWEEN : BRIAN FLETCHER

BAYSILK HOLDINGS PTY LTD

Plaintiffs

AND

OULD PTY LTD (ACN 009 408 584)

Defendant

Catchwords:

Application to dismiss action

Legislation:

Nil

Result:

Application refused

(Page 2)

Representation:

Counsel:

Plaintiffs : Mr I N Wilson

Defendant : Mr P T Williams

Solicitors:

Plaintiffs : Ian Wilson

Defendant : Williams & Co

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

Fletcher & Anor v Ould [2000] WASC 322

Case(s) also cited:

Nil

(Page 3)

1 MASTER BREDMEYER: This is an application by the defendant to the Case Management Registrar for the action to be dismissed and for the plaintiffs to pay the defendant's costs of the action on an indemnity basis, to be taxed if not agreed. The application has been referred by the Registrar to me.

2 The first declaration sought was that all moneys secured in favour of the defendant by a mortgage dated 4 July 1995 between Brian Fletcher and the defendant had been repaid to the defendant. That mortgage was for $50,000 and Baysilk Holdings was the guarantor. The second declaration sought was that all moneys secured in favour of the defendant pursuant to a debenture also dated 4 July 1995 made between Baysilk Holdings and the defendant had been repaid to the defendant. That debenture secured $100,000 and Brian Fletcher was the guarantor. The third declaration sought was consequential orders that the mortgage and the debenture be discharged.

3 On the day of filing that application, the plaintiffs also filed an application for an interlocutory injunction restraining the defendant from exercising its powers of sale under the mortgage. Affidavits were filed on both sides and that application came on for hearing before Steytler J. In a published judgment, Fletcher & Anor v Ould [2000] WASC 322, on 11 December 2000 the Judge granted the interlocutory injunction restraining the defendant mortgagee from proceeding with the sale subject to the payment into court of an amount of $75,000 by the plaintiffs by the end of January 2001. The money was not paid in and a later application to have the terms of the injunction varied failed. The result was that the injunction lapsed and the defendant is proceeding with the sale of the property. However, because there is a large first mortgage on the property,…

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.

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Details

Case: [2001] WASC 181
Decision Date

CaseChat Overview and Summary

The case of Fletcher v Ould Pty Ltd was heard in the Supreme Court of Western Australia. The plaintiffs, Brian Fletcher and Baysilk Holdings, sought declarations that all monies secured by a mortgage and a debenture had been repaid to the defendant, Ould Pty Ltd. They also sought consequential orders for the discharge of the mortgage and debenture. The defendant applied to dismiss the action and for costs on an indemnity basis. The court had to determine whether the action should be dismissed due to the failure of an interlocutory injunction and the refusal of an application for directions.

The key legal issue was whether the action should be dismissed given the failure of the interlocutory injunction and the dismissal of an application for directions. The court needed to consider whether there were still factual disputes between the parties and if the action was an appropriate means to resolve those disputes. The defendant argued that the action was spent and should be dismissed with costs, while the plaintiffs contended that factual matters remained in dispute.

The court found that there were factual disputes between the parties regarding the amounts owed under the mortgage and the debenture, and these disputes needed to be resolved by the court. The court disagreed with the defendant that the action was spent and should be dismissed. Instead, the court ordered the plaintiffs to file points of claim, including details of the sums borrowed and payments made, within 14 days. The defendant was directed to file points of defence and the plaintiffs to file points of reply within subsequent 14-day periods. Mutual discovery was ordered, excluding documents already given in affidavits. The court determined that the costs of the application should be in the cause, but the costs of previous applications and reserved costs should be awarded to the defendant.

The court's final orders included the dismissal of the defendant's application to dismiss the action, the direction for the filing of points of claim, points of defence, and points of reply within specified timeframes, and the ordering of mutual discovery. The costs of the application were to be in the cause, while the costs of previous applications and reserved costs were to be awarded to the defendant and taxed forthwith.

Orders