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:

1. 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.

2. 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.

3. The damage to the carport and wall occurred in September 2008.

4. 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.

5. 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.

6. 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.

7. 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.

8. 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.

9. 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

1. 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 the subject of the appeal, identified several unusual features, and determined that as a result there were sufficient special circumstances warranting an order that enforcement proceedings be suspended.

2. The appellant's counsel submits that the lack of clarity and drafting in the wording of the judgment in that:

   1.there is reference to only one claimant when there were two;

   2.it requires the judgment debtor to pay a claimant without identifying which one;

   3.it does not identify which claimant is entitled to what payment;

   4.it does not enable the judgment debtor to know which of the two claimants he is required to pay; and

   5.it fails to enable the judgment debtor to discharge the judgment by the payment of the judgment debt to one claimant rather than the other.

3. By reason of these facts and their combination and the fact Zenith was joined after the limitation period had expired, were sufficiently unusual features to warrant suspension of the enforcement proceedings.

4. Appellant's counsel submitted the claim was a subrogated claim made on behalf of an insurer.  The submission is that neither Greville nor Zenith were the owner of the carport with an obligation to pay for repairs.  Accordingly, the insurer had no right of subrogation.

Respondent's submissions

1. The judgment creditors' counsel submits that at first instance the successful judgment creditor is ordinarily entitled to enforce their judgment pending the determination of any appeal.  In moving the court for a stay, the judgment debtor must show there are special circumstances justifying the departure from the ordinary rule:  Eastland Technology Australia Pty Ltd v Whisson (2003) 28 WAR 308.

2. Counsel for the judgment creditor submits that the grant of a stay of execution must be perceived to be necessary to preserve the subject matter or the integrity of the litigation, or where refusal of a stay would create practical difficulties in respect of the relief granted on appeal.  As the counsel for the judgment creditor stated it can be succinctly put, the judgment debtor must establish that without the grant of a stay the right of appeal would be rendered nugatory.

3. The judgment creditors' counsel submits that standing behind the judgment creditor is an insurer and that the fruits of the litigation would first be paid into the account of the judgment creditors' solicitors to be paid to the insurer.

4. Thus, counsel for the judgment creditors says that the appeal process will not be rendered nugatory - if the judgment debtor is successful in the appeal then it is the insurer who will have to repay.  This is not a situation where there is a likelihood the respondent to the appeal will dissipate the monies.

Discussion

1. Section 15 of the Civil Judgments Enforcement Act contemplates a two‑stage process.  The first stage is to determine whether the applicant has cleared the hurdle of establishing that there are special circumstances.  If this is established, then the power and thus the discretion of the court is enlivened: Berry v Haynes Robinson [2011] WADC 34.

2. Appellant's counsel relies on Durolek to persuade me that the accretion of the factors referred to amount to special circumstances.

3. Durolek was a complex case which involved freezing orders in place over assets, as well as travel restriction orders.  Mitchell JA found that by reason of the unusual features of the orders mentioned, there was a prospect Mrs Durolek could not be restored to her former position if the appeal succeeds.

4. In my opinion Jansen is in a different position, in that Jansen may be restored to his previous position.

5. The argument on appeal by Jansen is whether the claimants have been properly joined, and if properly joined, what part of the judgment relates to which claimant.  Whilst those are live issues, the claimants are entitled to know that the fruits of their solicitors' labours are accounted for.  The interests of Jansen are protected by the monies being paid into the respondents' solicitors' trust account until further order.

6. Appellant's counsel makes the point that the joinder of Zenith only takes effect from the date of the joinder, and the statute of limitations cannot be overridden.  Whilst a significant issue, Greville remains a proper party (whether he has a proper claim is one of the arguments on appeal).

7. I am not persuaded that there are special circumstances to warrant suspension of enforcement.  The interests of Jansen can be protected by the judgment sum being paid to the respondents' solicitors' trust account until further order, and the respondents know the fruits of their litigation are secured.

8. I will hear from counsel on the form of orders and costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

CM

Court Officer

12 FEBRUARY 2021