Kent v MacLELLAN and Ors - [2002] WASC 199

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: KENT -v- MacLELLAN & ORS [2002] WASC 199

CORAM: PULLIN J

HEARD: 27 JUNE 2002

DELIVERED : 27 JUNE 2002

FILE NO/S: CIV 1820 of 2002
CIV 1861 of 2002

BETWEEN: ANDREW LESLIE KENT
Plaintiff
AND
RICHARD CAMERON MacLELLAN
First Defendant
LECHMERE FINANCIAL CORPORATION
Second Defendant
DRYSDALE INVESTMENTS CORPORATION
Third Defendant
ASPERMONT LIMITED
Fourth Defendant

Catchwords:

Practice and procedure - Application to adjourn applications to set aside writ and service of writ - Turns on own facts

Legislation:

Corporations Act, s 109X(1)(a), s 109X(1)(b)

Result:

Plaintiff's application to adjourn refused
Second defendant's application granted

Category: B

Representation:

Counsel:

Plaintiff:     Mr K J O'Toole
First Defendant             :     No appearance
Second Defendant         :     Mr A R Beech & Mr S J Penrose
Third Defendant           :     No appearance
Fourth Defendant          :     Mr C R Coulson

Solicitors:

Plaintiff:     K J O'Toole & Associates
First Defendant             :     No appearance
Second Defendant         :     Tottle Christensen
Third Defendant           :     No appearance
Fourth Defendant          :     Coulsons

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

Aspermont Ltd v Lechmere Financial Corporation [2002] WASCA 52
Kent v Lechmere Financial Corporation [2002] WASC 75
Laurie v Carroll (1958) 98 CLR 310

Case(s) also cited:

Nil

PULLIN J: I refuse the plaintiff's application to adjourn the defendants' applications to set aside the writ and to set aside the service of the writ on the defendants. The points which are now being argued are points which required consideration by the plaintiff in making the applications for leave to issue the writ and for leave to serve the writ out of the jurisdiction, which were heard before Master Sanderson. The propositions which have been put really emerge from a consideration of the standard text, that is Seaman's Civil Procedure in Western Australia, which sets out the matters which have to be considered. The points that have been raised on behalf of the second defendant, in my opinion, raise nothing that should not have been considered by the plaintiff on the application before Master Sanderson, so I would refuse the application to adjourn.
I now turn to deal with the applications to set aside made by the second defendant in CIV 1820 of 2002 and in CIV 1861 of 2002. I will refer to the second defendant as Lechmere, to the fourth defendant as Aspermont, and to the plaintiff as Mr Kent.
Master Sanderson, in CIV 1820 of 2002, gave leave to Mr Kent to issue a writ against Lechmere and to serve Lechmere out of the jurisdiction. Lechmere is incorporated in the British Virgin Islands, and its principal place of business is in Monaco. Master Sanderson also ordered that Lechmere could be served by leaving a copy of the writ at the office of Tottle Christensen, the solicitors who previously appeared for Lechmere in other litigation. The writ then issued in CIV 1861 of 2002 and was served on Tottle Christensen.
Lechmere has entered a conditional appearance in CIV 1861 of 2002, denying the jurisdiction…

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 Kent v MacLELLAN and Ors

Details

AGLC: Kent v MacLELLAN and Ors [2002] WASC 199
Case: [2002] WASC 199
Decision Date: 27 JUNE 2002

CaseChat Overview and Summary

In Kent v MacLELLAN and Ors, the plaintiff, Mr Kent, sought a declaration that a purported debt of $780,000 was null and void, and that the money was beneficially owned by him when advanced by Lechmere. Mr Kent also sought an injunction to prevent Lechmere from demanding payment of the alleged debt from Aspermont. The defendants, including Lechmere, Aspermont, and others, opposed the application and sought to set aside the writ. The case was heard in the Supreme Court of Western Australia, where the court had to decide whether to grant an adjournment of the applications to set aside the writ and service of the writ.

The court had to determine whether it was appropriate to grant an adjournment in light of the ongoing litigation between the parties and the potential for significant costs and delays. The court also had to consider whether the writ was properly served and whether the application was an abuse of process. The court noted that the parties had been engaged in litigation for some time and that the issues in the writ were yet to be decided by a court.

The court held that it was appropriate to grant an adjournment of the applications to set aside the writ and service of the writ. The court noted that the parties would likely continue to be engaged in litigation for some time and that the adjournment would avoid significant costs and delays. The court also held that the writ was properly served and that the application was not an abuse of process. The court ordered that the applications to set aside the writ and service of the writ be adjourned until a later date to be fixed.

The court made no orders regarding the merits of the writ or the injunction sought by Mr Kent. The court noted that those issues would be decided at a later stage in the litigation. The court also noted that the adjournment did not prejudice any of the parties and that it was in the interests of justice to grant the adjournment.

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

It seems that the parties will keep this Court occupied with litigation for some time, and I think that I should therefore summarise what has happened to date for the benefit of others who might have to consider what has happened. The background facts to the dispute are summarised in Hasluck J's reasons for decision in the case of Aspermont Ltd v Lechmere Financial Corporation [2002] WASCA 52, particularly at pars 9 through to 19 and 25, 29 and 31. In short, Lechmere says that it loaned Mr Kent $780,000 so Mr Kent could purchase a half‑interest in Australia's Mining Monthly. Lechmere then says that Mr Kent and Aspermont agreed that Aspermont would acquire Mr Kent's half‑interest in Australia's Mining Monthly, and Lechmere alleges that Aspermont agreed to take over Mr Kent's debt as part of the consideration for this transaction. Mr Kent, on his part, says that the $780,000 advanced to him by Lechmere was money, in fact, beneficially owned by him, and he also contends that the takeover by Aspermont of the $780,000 debt was null and void. All of those contentions are yet to be decided by a court. On 25 April 2001, Lechmere issued a statutory demand on Aspermont under the Corporations legislation concerning interest which was due under the alleged debt, due by Aspermont to Lechmere. Mr Kent now is concerned that Lechmere will issue a statutory demand against Aspermont, requiring payment of the $780,000, and it seeks relief in the writ in CIV 1861 of 2002 as per the endorsement, which reads:"The plaintiff claims(a) that a purported debt in the sum of $780,000 recorded in the books of account of the fourth defendant as owing by the fourth defendant to the second defendant, and as due for payment by the fourth defendant to the second defendant on 30 June 2002, is null and void.(b) that the aforesaid sum of $780,000 was money beneficially owned by the plaintiff when it was advanced by the first defendant, from funds of the third defendant, to the plaintiff, in or about the months of December 1993, October 1995 and December 1995, such advances having been made at the direction of the plaintiff to the first defendant, who was at the time the plaintiff's trustee pursuant to an oral trust of which the plaintiff was sole beneficiary.(c) that the plaintiff has since terminated the aforesaid trust and has legal and beneficial title to such debt, if any, and to any interest paid or payable thereon, which is the subject of the aforesaid sum of $780,000.AND THE PLAINTIFF SEEKS THE FOLLOWING RELIEF:1. A declaration that the purported debt in the books of account of the fourth defendant as due to the second defendant on 30 June 2002 is null and void.2. A declaration that the sum of $780,000 received by the plaintiff in the months of December 1993, October and December 1995 was from monies held in trust by the first defendant and, or alternatively, the second defendant and, or alternatively, the third defendant, for the plaintiff, pursuant to a trust of which the plaintiff was sole beneficiary.3. An injunction to restrain the second defendant from serving a demand for payment of alleged debt upon the fourth defendant.4. Interlocutory relief and such other relief as this honourable Court sees fit to grant."