Kim Henderson & Anor v James Gerard Thackray - [2013] HCASL 22

KIM HENDERSON & ANOR
v
JAMES GERARD THACKRAY & ANOR
[2013] HCASL 22
P34/2012

The applicants are directors, and the respondents are receivers and managers, of Bonthorpe Pty Ltd. In the Supreme Court of Western Australia, the respondents sought delivery up of certain property owned by Bonthorpe Pty Ltd. They brought an application for summary judgment and, in the alternative, sought declaratory and injunctive relief. The applicants appeared by a McKenzie friend and sought an adjournment to obtain legal representation. On 3 July 2012, Master Sanderson granted the respondents' application for summary judgment in part and refused the applicants' request for an adjournment. Master Sanderson found that the applicants had no defence to the claim and that no useful purpose would be served by an adjournment.
The applicants appealed to the Court of Appeal (Newnes and Murphy JJA). The respondents applied for the appeal to be dismissed under a rule permitting that course if none of the grounds of appeal has a reasonable prospect of succeeding. There were 54 grounds of appeal alleging denial of natural justice, various forms of misconduct by the respondents and a third party, errors of law and errors of fact. The Court of Appeal concluded that none of the grounds had reasonable prospects of success and dismissed the appeal.
The applicants seek special leave to appeal from part of the judgment of the Court of Appeal. As the applicants are unrepresented, the application is to be dealt with under r 41.10.
The application for special leave seeks to raise several grounds which, in substance, rely on the same complaints advanced before the Court of Appeal. The application raises no question of principle and there is, in any event, no reason to doubt the correctness of the decision of the Court of Appeal. Special leave is refused.
Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

S.M. Kiefel
13 March 2013 S.J. Gageler

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.

Keep reading for free

Create a free CaseChat account to read Kim Henderson & Anor v James Gerard Thackray and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2013] HCASL 22
Decision Date

CaseChat Overview and Summary

Kim Henderson and another, as directors of Bonthorpe Pty Ltd, appealed against a decision made by Master Sanderson in the Supreme Court of Western Australia, who granted the receivers and managers of the same company, James Gerard Thackray and another, an application for summary judgment. The receivers and managers had also applied for delivery up of certain property owned by Bonthorpe Pty Ltd. The directors sought an adjournment to obtain legal representation but were unsuccessful. The Court of Appeal dismissed the appeal, finding that none of the grounds of appeal had a reasonable prospect of success. The directors then sought special leave to appeal from part of the judgment of the Court of Appeal. The application for special leave to appeal was made under r 41.10 as the directors were unrepresented.

The legal issues that arose from this case included whether the decision of the Court of Appeal was correct in dismissing the appeal and whether special leave should be granted to appeal further. The grounds of appeal included complaints about denial of natural justice, misconduct, errors of law and fact. The High Court considered whether the Court of Appeal had erred in concluding that none of the grounds of appeal had reasonable prospects of success and whether the application for special leave raised any question of principle. The High Court also examined whether there was any reason to doubt the correctness of the Court of Appeal’s decision.

The High Court held that the application for special leave to appeal should be refused as the application raised no question of principle and there was no reason to doubt the correctness of the Court of Appeal’s decision. The Court found that the Court of Appeal had correctly concluded that none of the grounds of appeal had reasonable prospects of success. The High Court noted that the application for special leave was, in substance, relying on the same complaints that had been previously advanced before the Court of Appeal. The Court found that the application for special leave did not raise any new issues or arguments that had not already been considered by the Court of Appeal. The High Court held that there was no reason to doubt the correctness of the Court of Appeal’s decision and that special leave should be refused.

Orders