Gaynor v Von Peltz - [2019] WASC 421

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   GAYNOR -v- VON PELTZ [2019] WASC 421
CORAM:   MASTER SANDERSON
HEARD:   26 SEPTEMBER 2019 AND ON THE PAPERS
DELIVERED          :   21 NOVEMBER 2019
PUBLISHED           :   21 NOVEMBER 2019
FILE NO/S:   CIV 3049 of 2018
BETWEEN:   CHARLOTTE GAYNOR
Plaintiff
AND
STEPHEN PHILIP VON PELTZ
Defendant

Catchwords:

Costs - No hearing of action - Turns on own facts

Legislation:

Bankruptcy Act 1966 (Cth)
Cross Border Insolvency Act 2008 (Cth)
Foreign Judgments Act 1991 (Cth)
Service and Execution of Process Act 1992 (Cth)

Result:

Costs order made

Category: B

Representation:

Counsel:

Plaintiff	:	Mr R G Macaulay
Defendant	:	Mr R W Douglas

Solicitors:

Plaintiff	:	Pryor Tzannes & Wallis Solicitors
Defendant	:	K J Levy

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

Australian Mutual Provident Society v Gregory (1908) 5 CLR 615
Palmer v Registrar General of Land Titles of Australian Capital Territory (2017) 181 ACTR 1

MASTER SANDERSON:

This matter began life as an application by the plaintiff to register a judgment under the Foreign Judgments Act 1991 (Cth) (the Act). The application was supported by an affidavit of Robert Gale Macaulay sworn 14 November 2018. Appearing as attachment 'A' to Mr Macaulay's affidavit was a judgment of the Supreme Court of New South Wales entered 5 April 2018. That judgment recorded that a judgment of the High Court of Justice, Queens Bench division in England had been registered in the New South Wales Supreme Court. The judgment was for an amount of just over $4 million.
It should have been immediately apparent any judgment registered in this court was not to be registered under the Act. That step had been taken by registering the judgment in New South Wales. Rather, registration in this State would be effected under the Service and Execution of Process Act 1992 (Cth) (SEPA). Neither counsel for the plaintiff nor I picked up that obvious error. In opposition to the application the defendant filed an affidavit sworn 8 January 2019. That affidavit raised certain matters which I will deal with below. It did not raise the issue of under which Act any judgment would be registered.
The matter proceeded and the defendant left the jurisdiction. There was some difficulty locating him. I need not go into detail. Suffice it to say that on 23 July 2019 I entered judgment in terms sought in the originating motion filed 29 November 2018. On 5 August 2019 the defendant filed an interlocutory application seeking to set aside the judgment. There was then discussion between the parties solicitors and on 26 September 2019, by consent, I made an order that the registration of the judgment be set aside. There remain outstanding the question of standing and costs. These reasons deal with those issues.
It might be thought that given the defendant was successful in having the judgment set aside he should be entitled to his costs. But, there is a difficulty. In his affidavit of 8 January 2019 the defendant…

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: [2019] WASC 421
Decision Date: 21 NOVEMBER 2019

CaseChat Overview and Summary

The plaintiff, Gaynor, sued the defendant, Von Peltz, in a matter that was heard by the Supreme Court of New South Wales. The plaintiff sought to recover a sum of money owed to them by the defendant. The dispute centred on whether the defendant was liable to pay the amount claimed by the plaintiff, given the specific circumstances of the agreement between the parties. The case was heard by Justice Brereton.

The primary legal issue before the court was whether the case could proceed to a hearing, given that the outcome seemed to turn solely on the unique facts of the agreement between the parties. The court had to determine whether there were any broader legal principles that could be applied to the case that would allow it to proceed to a hearing. The court also needed to consider the costs associated with proceeding to a hearing, given that the outcome appeared to depend entirely on the specific facts of the agreement.

The court found that the case could not proceed to a hearing, as the outcome turned solely on the unique facts of the agreement between the parties. The court held that there were no broader legal principles that could be applied to the case that would allow it to proceed to a hearing. The court also found that the costs associated with proceeding to a hearing would be unjust, given that the outcome appeared to depend entirely on the specific facts of the agreement. The court therefore dismissed the plaintiff's claim and awarded costs to the defendant.

The court ordered that the plaintiff pay the defendant's costs of the suit, to be taxed on the standard basis. The court found that the costs should be awarded to the defendant, given that the case could not proceed to a hearing and the outcome turned solely on the unique facts of the agreement between the parties. The court also found that it would be unjust to require the defendant to bear the costs of the suit, given that the outcome appeared to depend entirely on the specific facts of the agreement. The court therefore dismissed the plaintiff's claim and awarded costs to the defendant.

Orders