GREEN & ORS -v- WILDEN PTY LTD & ORS [2005] WASC 83 (S2)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASC 83 (S2)
Case No:	CIV:3049/1991	Heard:	4-21 NOVEMBER 2003, 15-28 APRIL 2004, 5, 11, 12, 21, 26, 27, 31 MAY 2004, 1-4, 8-14, 21-30 JUNE 2004, 1 & 2 JULY 2004, 29 & 30 NOVEMBER 2004, 19 MAY 2005 & 14 JUNE 2005, 9 & 25 AUGUST 2005
Coram:	HASLUCK J	Delivered:	10/05/05
Supplementary Delivered:	25/08/05
No of pages:	11	Judgment Part:	1 of 1
Result:	Application allowed
Category:	B
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Parties:	GRAEME WILLIAM GREEN W J GREEN & CO (1984) PTY LTD (ACN 008 851 867) SHARYN LEE GREEN JULIE ANNE GREEN WILLIAM JOSEPH GREEN NORMA GLENYCE GREEN WILDEN PTY LTD (ACN 009 143 033) MAGENTA NOMINEES PTY LTD (ACN 009 340 158) TACE PTY LTD (ACN 009 204 915) SYDNEY JAMES CHESSON BERT LEONARD DENBOER CALLAO PTY LTD (ACN 008 867 552) BENRONE PTY LTD (ACN 008 931 084) DELTABROOK PTY LTD (ACN 009 462 695) JOHN MARTIN KELLY
Catchwords:	Practice and procedure Application for suspension order (or stay of execution) pending appeal Special circumstances found to exist No new principles
Legislation:	Civil Judgments Enforcement Act 2004 (WA), s 15(3)
Case References:	Eastland Technology Australia Pty Ltd & Ors v Whisson & Ors [2003] WASCA 307 Federal Commissioner of Taxation v Myer Emporium Ltd (No 1) (1986) 160 CLR 220 Hamersley Iron Pty Ltd v Lovell (No 2) (1998) 20 WAR 79 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : GREEN & ORS -v- WILDEN PTY LTD & ORS [2005] WASC 83 (S2) CORAM : HASLUCK J HEARD : 4-21 NOVEMBER 2003, 15-28 APRIL 2004, 5, 11, 12, 21, 26, 27, 31 MAY 2004, 1-4, 8-14, 21-30 JUNE 2004, 1 & 2 JULY 2004, 29 & 30 NOVEMBER 2004, 19 MAY 2005 & 14 JUNE 2005, 9 & 25 AUGUST 2005 DELIVERED : 10 MAY 2005 SUPPLEMENTARY
DECISION : 25 AUGUST 2005 FILE NO/S : CIV 3049 of 1991

CIV 3050 of 1991

CIV 2965 of 1990

CIV 2966 of 1990

Consolidated by order dated 5 August 1998

BETWEEN : GRAEME WILLIAM GREEN

First Plaintiff

W J GREEN & CO (1984) PTY LTD (ACN 008 851 867)

Second Plaintiff

SHARYN LEE GREEN

GRAEME WILLIAM GREEN

JULIE ANNE GREEN

WILLIAM JOSEPH GREEN

NORMA GLENYCE GREEN

Third Plaintiffs

AND

(Page 2)

WILDEN PTY LTD (ACN 009 143 033)

First Defendant

MAGENTA NOMINEES PTY LTD (ACN 009 340 158)

Second Defendant

TACE PTY LTD (ACN 009 204 915)

Third Defendant

SYDNEY JAMES CHESSON

Fourth Defendant

BERT LEONARD DENBOER

Fifth Defendant

CALLAO PTY LTD (ACN 008 867 552)

Sixth Defendant

BENRONE PTY LTD (ACN 008 931 084)

Seventh Defendant

DELTABROOK PTY LTD (ACN 009 462 695)

Eighth Defendant

JOHN MARTIN KELLY

Ninth Defendant

(BY ORIGINAL ACTION)

WILDEN PTY LTD (ACN 009 143 033)

First Plaintiff by Counterclaim

MAGENTA NOMINEES PTY LTD (ACN 009 340 158)

Second Plaintiff by Counterclaim

AND

GRAEME WILLIAM GREEN

First…

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 Green v Wilden Pty Ltd

Details

AGLC: Green v Wilden Pty Ltd [2005] WASC 83 (S2)
Case: [2005] WASC 83 (S2)
Decision Date

CaseChat Overview and Summary

The case of Green v Wilden Pty Ltd [2005] WASC 83 (S2) involved a complex dispute between multiple parties, including Graeme William Green, Wilden Pty Ltd, and others. The primary issue before the court was whether to grant a suspension order (or stay of execution) pending an appeal, considering the intricate legal questions and the mixed results of the litigation. The defendants, excluding the eighth and ninth defendants, sought a suspension order to halt the enforcement of the judgment made on 9 August 2005, pending the outcome of their appeal in CACV 101 of 2005. The court had to determine if special circumstances justified such an order under Section 15(3) of the Civil Judgments Enforcement Act 2004 (WA).

Hasluck J examined the concept of "special circumstances" as outlined in Federal Commissioner of Taxation v Myer Emporium Ltd (No 1) (1986) 160 CLR 220 and Hamersley Iron Pty Ltd v Lovell (No 2) (1998) 20 WAR 79, which necessitated a stay to prevent the appeal from being rendered nugatory or to preserve the integrity of the litigation. The court also considered the Full Court's decision in Eastland Technology Australia Pty Ltd & Ors v Whisson & Ors [2003] WASCA 307, which highlighted the importance of establishing that the appeal has reasonable prospects of success and that the balance of convenience favours the applicant. In this case, the court found that the orders made, which included the removal of Wilden Pty Ltd as trustee and further valuations and accounts, would significantly alter the subject matter of the litigation if enforced before the appeal's resolution. The finely balanced legal issues and the potential for substantial costs and irreversible actions justified the grant of a stay.

Consequently, the court allowed the application for a suspension order, considering the special circumstances, the necessity to preserve the litigation's integrity, and the appellants' reasonable prospects of success on appeal. The order also granted general liberty to apply, ensuring flexibility in addressing any future needs arising from the case.

Orders