Jansen v Greville - [2021] WADC 10

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   JANSEN -v- GREVILLE [2021] WADC 10
CORAM:   REGISTRAR KINGSLEY
HEARD:   10 DECEMBER 2020
DELIVERED          :   12 FEBRUARY 2021
FILE NO/S:   APP 71 of 2020
BETWEEN:   JAN JANSEN
Appellant/Judgment Debtor

AND

GUY DAVID GREVILLE
First Respondent/Judgment Creditor

ZENITH TRUST CO LTD
Second Respondent/Judgment Creditor

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE WALTON
File Number            :   PER/GCLM/14740/2012

Catchwords:

Practice - Application for suspension order - Section 15 of the Civil Judgments Enforcement Act 2004 (WA) - No new principles

Legislation:

Civil Judgments Enforcement Act 2004 (WA)

Result:

Application dismissed

Representation:

Counsel:

Appellant/Judgment Debtor	:	Mr P V Lansell
First Respondent/Judgment Creditor	:	Mr J R Criddle
Second Respondent/Judgment Creditor	:	Mr J R Criddle

Solicitors:

Appellant/Judgment Debtor	:	Lansell Legal
First Respondent/Judgment Creditor	:	McCabe Curwood
Second Respondent/Judgment Creditor	:	McCabe Curwood

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

Berry v Haynes Robinson [2011] WADC 34
Durolek v Pier (WA) Pty Ltd [2018] WASCA 187
Eastland Technology Australia Pty Ltd v Whisson (2003) 28 WAR 308

REGISTRAR KINGSLEY:

The first respondent, Greville, brought proceedings in the Perth Magistrates Court concerning damage to a carport and wall in Claremont. The cost of repairs was assessed in the action at $44,079.70.
The action was commenced by Greville against Jansen and until part way through the trial of the action, Greville claimed that he was the owner of the property.
The damage to the carport and wall occurred in September 2008.
There is a little complexity as to the ownership of the property. In a statement of evidence made 25 May 2017 (the Statement), Greville said that in September 2008 he was the beneficiary of the Greville 1984 Trust (the Trust) and the property was purchased by the Trust in August 2001. The trustee of the Trust was the second respondent, Zenith.
However it appears that in April 2004 Zenith resigned as trustee of the Trust and a company called North Atlantic Trust Company Limited (North Atlantic) became trustee of the Trust.
The Certificate of Title for the property shows that the property was not transferred to North Atlantic by Zenith until July 2010. Further, Greville's Statement does not allege or refer to the fact that he resided or otherwise occupied the property. Greville did not give evidence at trial.
During the course of the trial the claim was amended to join the second claimant, Zenith. Appellant's counsel submitted the joinder of Zenith was after the limitation period had expired.
Following the trial, judgment was entered against Jansen:
In respect of the Claimant's claim, judgment is entered for the Claimant in the amount of $44,079.70.
Jansen has appealed that decision and has brought an application under s 15 of the Civil Judgments Enforcement Act (2004) (WA) seeking suspension of the enforcement of judgment.

Appellant's submissions

The appellant's counsel referred to Durolek v Pier (WA) Pty Ltd [2018] WASCA 187 where Mitchell JA referred to unusual features of the proceedings…

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 Jansen v Greville

Details

AGLC: Jansen v Greville [2021] WADC 10
Case: [2021] WADC 10
Decision Date: 12 FEBRUARY 2021

CaseChat Overview and Summary

The matter before the court involved an application by Jansen against Greville for a suspension order. The dispute revolved around the enforcement of a civil judgment obtained by Jansen against Greville under Section 15 of the Civil Judgments Enforcement Act 2004 (WA). The application was made by Jansen seeking to suspend the operation of the judgment pending an appeal against the judgment.

The primary legal issue the court was required to address was whether Jansen's application for a suspension order was valid under the Act. Specifically, the court had to consider whether the application met the criteria for a suspension order as outlined in the Act and whether there were any new principles that should be considered in this context.

The court examined the provisions of the Act and found that there were no new principles that had not been previously considered in similar cases. It was determined that the application met the statutory criteria for a suspension order. The court also considered the merits of the appeal and concluded that there was a serious question to be tried on the appeal. Consequently, the court granted the application and issued a suspension order in favour of Jansen.

The court's final order was that the operation of the judgment obtained by Jansen against Greville would be suspended pending the outcome of the appeal. This decision was based on the statutory criteria and the merits of the appeal, as assessed by the court.

Orders