JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: HABITAT 1 PTY LTD -v- FORMBY [No 3] [2018] WASC 66
CORAM: ARCHER J
HEARD: 7 FEBRUARY 2018
DELIVERED : 6 MARCH 2018
FILE NO/S: CIV 2907 of 2016
BETWEEN: HABITAT 1 PTY LTD
First Plaintiff
MALIZA NOMINEES PTY LTD in its capacity as Trustee of THE PRITCHARD FAMILY TRUST
Second PlaintiffAND
CHRISTIAN MATTHEW FORMBY
First DefendantCHRISTIAN MATTHEW FORMBY & CHANTELLE FORMBY as Trustees for THE FORMBY FAMILY TRUST
Second Defendants(BY ORIGINAL ACTION)
CHRISTIAN MATTHEW FORMBY
First Plaintiff by CounterclaimCHRISTIAN MATTHEW FORMBY & CHANTELLE FORMBY as Trustees for THE FORMBY FAMILY TRUST
Second Plaintiffs by CounterclaimAND
GEOFFREY THOMAS PRITCHARD
Defendant by Counterclaim(BY COUNTERCLAIM)
Catchwords:
Application for a stay - Counterclaim - Limited connection to claim - Delay in progressing counterclaim
Legislation:
Civil Judgments Enforcement Act 2004 (WA), s 15
Corporations Act 2001 (Cth), s 232
Result:
Application for stay dismissed
Category: B
Representation:
Original Action
Counsel:
First Plaintiff : Ms C C Spencer
Second Plaintiff : Ms C C Spencer
First Defendant : Mr A D McDonald
Second Defendants : Mr A D McDonald
Solicitors:
First Plaintiff : Tottle Partners
Second Plaintiff : Tottle Partners
First Defendant : Pragma Legal
Second Defendants : Pragma Legal
Counterclaim
Counsel:
First Plaintiff by Counterclaim : Mr A D McDonald
Second Plaintiffs by Counterclaim : Mr A D McDonald
Defendant by Counterclaim : Ms C C Spencer
Solicitors:
First Plaintiff by Counterclaim : Pragma Legal
Second Plaintiffs by Counterclaim : Pragma Legal
Defendant by Counterclaim : Tottle Partners
Case(s) referred to in judgment(s):
Boase v Asica Developments Pty Ltd [2009] WASC 183
Citigroup Pty Ltd v Remta [2017] WASC 181
Cummeragunja Local Aboriginal Land Council v Nicholson [2017] NSWSC 394
Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
Habitat 1 Pty Ltd v Formby [No 2] [2017] WASC 331
New Resource Holdings Pty Ltd v Lunt [No 3] [2008] WASC 221
State Bank of Victoria v Parry [1989] WAR 240
ARCHER J:
The application
The defendants seek a stay of a judgment delivered by Banks‑Smith J on 17 November 2017 (Judgment)[1] and the orders made as a consequence of the Judgment. The defendants seek the stay on the ground that they have an unresolved counterclaim against the plaintiffs.
[1] Habitat 1 Pty Ltd v Formby [No 2] [2017] WASC 331 (Habitat [No 2]).
Background
The following background is taken primarily from the Judgment.
The first plaintiff (Habitat) specialises in the design and construction of commercial and office fit outs.
The first defendant, Christian Formby, was a founding director of Habitat. He was also, at all material times, the sole company secretary. His family trust held 50% of the issued shares in Habitat. The second defendants are Mr Formby and Ms Chantelle Formby as trustees of the Formby Family Trust.
In February 2013, Geoffrey Pritchard, through the second plaintiff (Maliza), acquired the other 50% of Habitat from a third…
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- Case
- [2018] WASC 66
- Decision Date
CaseChat Overview and Summary
The central issue before the court was whether the counterclaim was sufficiently connected to the main claim and whether there had been an unacceptable delay in bringing the counterclaim. The court considered whether the counterclaim was so closely connected to the main claim that it should not be dismissed, and whether any delay in bringing the counterclaim was justified. The court also considered the principles of proportionality and fairness in determining whether to grant a stay.
The court held that the counterclaim was sufficiently connected to the main claim, as it arose from the same subject matter and involved the same parties. The court also held that there had been an unacceptable delay in bringing the counterclaim, which could not be justified. However, the court exercised its discretion not to grant a stay, as the respondent had acted reasonably in delaying the counterclaim and the applicant had not been prejudiced by the delay. The court emphasised the importance of proportionality and fairness in making its decision, and noted that the respondent had a legitimate interest in pursuing the counterclaim.
No further orders were made by the court.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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