Green v Wilden Pty Ltd
[2005] WASC 83 (S2)
GREEN & ORS -v- WILDEN PTY LTD & ORS [2005] WASC 83 (S2)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASC 83 (S2) | |
| Case No: | CIV:3049/1991 | 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 | 10/05/05 | |
| 25/08/05 | |||
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Application allowed | ||
| B | |||
| PDF Version |
| 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
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
- 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 Defendant by Counterclaim
(Page 3)
- W J GREEN & CO (1984) PTY LTD (ACN 008 851 867)
Second Defendant by Counterclaim
SHARYN LEE GREEN
GRAEME WILLIAM GREEN
JULIE ANNE GREEN
WILLIAM JOSEPH GREEN
NORMA GLENYCE GREEN
Third Defendants by Counterclaim
(BY COUNTERCLAIM)
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)
Result:
Application allowed
Category: B
(Page 4)
Representation:
Original Action
Counsel:
First Plaintiff : Mr D Grace QC & Mr M L Bennett
Second Plaintiff : Mr D Grace QC & Mr M L Bennett
Third Plaintiffs : Mr D Grace QC & Mr M L Bennett
First Defendant : Mr M J McCusker QC &
Mr R H B Pringle QC
Second Defendant : Mr M J McCusker QC &
Mr R H B Pringle QC
Third Defendant : Mr M J McCusker QC &
Mr R H B Pringle QC
Fourth Defendant : Mr M J McCusker QC &
Mr R H B Pringle QC
Fifth Defendant : Mr M J McCusker QC &
Mr R H B Pringle QC
Sixth Defendant : Mr M J McCusker QC &
Mr R H B Pringle QC
Seventh Defendant : Mr M J McCusker QC &
Mr R H B Pringle QC
Eighth Defendant : Mr M J McCusker QC &
Mr R H B Pringle QC
Ninth Defendant : Mr M J McCusker QC &
Mr R H B Pringle QC
Solicitors:
First Plaintiff : Bennett & Co
Second Plaintiff : Bennett & Co
Third Plaintiffs : Bennett & Co
First Defendant : Galic & Co
Second Defendant : Galic & Co
Third Defendant : Galic & Co
Fourth Defendant : Galic & Co
Fifth Defendant : Galic & Co
Sixth Defendant : Galic & Co
Seventh Defendant : Galic & Co
Eighth Defendant : Galic & Co
Ninth Defendant : Galic & Co
(Page 5)
Counterclaim
Counsel:
First Plaintiff by Counterclaim : Mr M J McCusker QC &
Mr R H B Pringle QC
Second Plaintiff by Counterclaim : Mr M J McCusker QC &
Mr R H B Pringle QC
First Defendant by Counterclaim : Mr D Grace QC & Mr M L Bennett
Second Defendant by Counterclaim : Mr D Grace QC & Mr M L Bennett
Third Defendants by Counterclaim : Mr D Grace QC & Mr M L Bennett
Solicitors:
First Plaintiff by Counterclaim : Galic & Co
Second Plaintiff by Counterclaim : Galic & Co
First Defendant by Counterclaim : Bennett & Co
Second Defendant by Counterclaim : Bennett & Co
Third Defendants by Counterclaim : Bennett & Co
Case(s) referred to in judgment(s):
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
Case(s) also cited:
Nil
(Page 6)
1 HASLUCK J: The defendants, save for the eighth and ninth defendants, have applied for a suspension order in respect of the judgment and orders made by me on 9 August 2005, pending the outcome of an appeal against the said orders in CACV 101 of 2005. The application is supported by the affidavit of Tihomir Galic sworn 24 August 2005. Such an application was formerly known as an application for a stay of execution and, for ease of reference I will use that term, being the term used in the decided cases to be mentioned later.
2 It is not necessary for me to set out at length the facts and matters giving rise to the present application. In my supplementary judgment handed down on 9 August 2005 I provided an overview in which I summarised the nature of the matters in issue between the parties and the findings made in the primary judgment. I will not repeat what was said on that occasion and will proceed as if the summary is set out in full in this second supplementary judgment.
3 For present purposes it will be sufficient to say briefly that the plaintiffs advanced claims against three trustee companies and certain individuals, including Mr Chesson and Mr Denboer, who were allegedly associated with the matters complained of. Broadly described, the plaintiffs succeeded as to certain aspects of the matter and obtained an order for the removal of Wilden Pty Ltd as trustee for the Balga/Wilden Trust. However, certain of their claims failed and judgment was entered against certain of the Green parties in respect of a counterclaim advanced by certain of the defendants.
4 Put shortly, the litigation required that many finely balanced legal issues be resolved and in the end, neither party can be said to have succeeded entirely. It was a mixed result. Moreover, it will be apparent from the lengthy and detailed orders made on 9 August 2005 that, in order to carry the various findings into effect, further inquiries have yet to be undertaken bearing upon matters of account and valuation.
5 Section 15 of the Civil Judgments Enforcement Act 2004 (WA) provides:
"A person against whom a judgment is given may apply for an order suspending the enforcement of all or part of the judgment to the Court that gave the judgment or a Court that is dealing with an appeal against the judgment."
(Page 7)
6 By s 15(3):
"On such an application the Court may only make such an order if there are special circumstances that justify it doing so."
7 I am of the view that this provision empowers me to deal with the present application. I note in passing that by O 47 r 13 of the Rules of the Supreme Court, the Court, if satisfied by a person liable to execution under a judgment or order that by reason of special circumstances it is inexpedient to enforce the judgment or order, may stay the execution for such period and on such terms as the Court thinks fit.
8 I will turn to the decided cases bearing upon an application for a stay of execution and the meaning of the concept "special circumstances" referred to in s 15(3) of the Civil Judgments and Enforcement Act in a moment.
9 It emerges from the affidavit of Mr Galic at par 12 that in the present case an application was made for an interim stay of execution before the Appeal Court on the basis of the deponent's understanding that the trial Judge, that is, Hasluck J, was away on circuit and would not be available to hear the application.
10 The matter came before a single Judge of Appeal, Pullin JA, on Monday, 22 August 2005 and was adjourned. Pullin JA did not grant an interim stay. After some discussion Mr Galic informed his Honour that an application would be made to the trial Judge to stay the execution of the orders. It seems that Pullin JA was of the view that the matter should proceed by way of an application to the trial Judge. It is against this background that the matter comes before me.
11 Mr Galic says in his affidavit that there is some urgency in obtaining a stay of the orders comprising the judgment. This is due to the peremptory nature of the orders made by the trial Judge in removing Wilden Pty Ltd as trustee and requiring the other trustee companies to forthwith request the president of the Institute of Valuers to nominate a valuer to value certain units. Unless a stay is granted, the defendants will be in contempt of Court for failing to comply with the orders even though they have now instituted an appeal against the primary Court's decision.
12 In a letter dated 11 August 2005 delivered to the solicitors for the plaintiff seeking their consent to the application for a stay, it is said by Mr Galic on behalf of his clients that it would be clearly inexpedient to enforce the orders being appealed against in the circumstances of the
(Page 8)
- present case. Those circumstances are said to be that the taking of the accounts and inquiries contemplated by the orders and the new trustee's costs are likely to quickly "run through the roof" and cannot realistically be compensated for if the judgment is ultimately overturned on appeal.
13 Further, a finding on appeal that the valuers' determinations of the repurchase price were valid would unravel most of the orders made. As to the accounts to be taken, it is said that the Green parties elected during the course of the trial to sue for specific performance of their repurchase contract and damages in the form of interest on the repurchase value. The Green parties cannot as a matter of reason, logic or law have both interest on the repurchase value and an account taken of profits and distributions made by the trust after the repurchase request as that would amount to double recovery.
14 It is said further in Mr Galic's affidavit that in the event of findings on appeal that there were no breaches of fiduciary duty, or that the breaches found were not fraudulent, such findings would nullify any awards of compensation in equity. It was said also that all the matters referred to earlier constitute special circumstances sufficient to justify a stay of the orders previously made.
15 I pause to note that the plaintiffs were not prepared to consent to the application and are opposed to the making of any order for a stay of execution. They have filed written submissions dated 25 August 2005.
16 It is well established by authority that the discretion which by statutory provisions or Rules of Court are customarily conferred in regard to the ordering of a stay is only to be exercised where special circumstances exist. Such circumstances must be sufficient to justify a departure from the ordinary rule that a successful litigant is entitled to the fruits of his litigation, pending the determination of any appeal.
17 It was said in Federal Commissioner of Taxation v Myer Emporium Ltd (No 1) (1986) 160 CLR 220 at 222 by Dawson J:
"Special circumstances justifying a stay will exist where it is necessary to prevent the appeal, if successful, from being nugatory. Generally that will occur when, because of the respondent's financial state there is no reasonable prospect of recovering moneys paid pursuant to the judgment at first instance. However, special circumstances are not limited to that situation and will I think exist where, for whatever reason, there is a real risk that it will not be possible for a successful
(Page 9)
- appellant to be restored substantially to his former position if judgment against him is executed."
18 In Hamersley Iron Pty Ltd v Lovell (No 2) (1998) 20 WAR 79 the Full Court held:
"Generally a stay will only be granted where it is necessary to preserve the subject matter of the litigation or where refusal would create practical difficulties in the relief available to the High Court or where there is a real risk that it will not be possible for a successful appellant to be restored substantially to his former position."
19 Anderson J said at 89:
"Unless a stay is necessary to preserve the subject matter or integrity of the litigation the circumstances will not be regarded as sufficiently exceptional to enliven the discretionary jurisdiction to provide a stay. Only if the applicant can show that a stay is necessary to that end will the High Court go on to consider matters such as whether the application for special leave has a prospect of success, whether a stay will occasion hardship to the respondent, where the balance of convenience lies and so on."
20 His Honour thought that such matters are always treated as secondary to the question of whether a stay is necessary to preserve the subject matter or integrity of the litigation. They come into play only if it appears that the refusal of a stay will substantially deprive the applicant of the benefit to be derived from the appeal. Thus an applicant may fail to obtain a stay even if the applicant can show that unless there is a stay the appeal will be futile.
21 These principles are echoed in the more recently decided decision of the Full Court in Eastland Technology Australia Pty Ltd & Ors v Whisson & Ors [2003] WASCA 307. In that case the judgment of the Court at par 9 reflected the Court's endeavour to distil what were thought to be the generally applicable relevant principles and that distillation was in the form of this summary:
"• The successful litigant at first instance will ordinarily be entitled to enforce the judgment pending the determination of any appeal.
(Page 10)
- • It is for the applicant for a stay to move the court to a favourable exercise of its discretion.
• It will not do so unless special circumstances are shown justifying the departure from the ordinary rule.
• The central issue will be whether the grant of a stay is perceived to be necessary to preserve the subject matter or the integrity of the litigation, or where refusal of a stay could create practical difficulties in respect of the relief which may be granted on appeal. It is often put shortly that it will first and foremost be necessary to establish that without the grant of a stay, the right of appeal, whether upon the grant of leave or special leave or not, will be rendered nugatory.
• If that can be demonstrated, the stay will generally still be refused unless it can be established that the appeal process, whether upon the grant of leave or special leave or not, has ultimately reasonable prospects of success so as to result in the grant of relief to the appellant.
• If that hurdle can be overcome, the stay may still be refused where it appears that the balance of convenience does not lie in favour of the applicant; where, for example, the grant of a stay will occasion hardship to the respondent which may not be alleviated by the terms upon which the stay may be granted."
22 Against this background let me return to the circumstances of the present case. I am of the view that a stay of execution or a suspension order (to put it another way) should be allowed in the circumstances of the present case pursuant to s 15(3) of the Civil Judgments Enforcements Act. I consider that there are special circumstances justifying the making of such an order.
23 It will be apparent from matters referred to in an earlier discussion that the dispute between the parties has given rise to matters of legal complexity and that the final judgment of the Court has produced a mixed result. The plaintiffs cannot be easily characterised as a successful party that might be deprived of the fruits of their judgment if a stay is granted.
24 The nature of the orders made, including provision for the removal of a trustee and the undertaking of further valuations and accounts means
(Page 11)
- that the subject matter of the litigation is likely to be significantly altered if various orders are carried into effect prior to the hearing of the appeal that has now been instituted. Substantial costs will be incurred and possibly the activities associated with those costs will prove to be of no avail if the appeal succeeds.
25 I consider that in these circumstances a stay of execution is necessary in order to preserve the integrity of the litigation and to ensure that proper effect can be given to orders made by the Court of Appeal if the appeal succeeds. The point of the appeal is likely to be frustrated if the appellant succeeds and the orders previously made have already been carried into effect.
26 In addition, it will be apparent from both the primary judgment and the supplementary judgment in this matter that many of the matters in issue between the parties are finely balanced and it must therefore be conceded that the appellant has prospects of success on appeal.
27 To my mind this consideration reinforces the view I have expressed that a stay of execution should be granted. The balance of convenience favours a stay. There is a real risk that the appellants, if successful on appeal, cannot be substantially restored to that former position if the orders comprising the judgment are carried into effect forthwith.
28 I am not persuaded that the plaintiffs will be subjected to hardship in circumstances where the litigation has been on foot for many years and, in the final analysis, they have had only a partial success.
29 Accordingly I will make orders in the terms proposed by the defendants with respect to the application for a suspension order. I consider also that there should be general liberty to apply.
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