Lee v Brandis

Case [2025] WASCA 125

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   LEE -v- BRANDIS [2025] WASCA 125

CORAM:   VAUGHAN JA

HALL JA

HEARD:   25 JULY 2025

DELIVERED          :   22 AUGUST 2025

FILE NO/S:   CACV 35 of 2025

BETWEEN:   JEFFREY STEWART LEE

Appellant

AND

COLIN ROWLEY BRANDIS

First Respondent

KINGSFIELD HOLDINGS PTY LTD

Second Respondent

PAOLO FILLIPO AMARANTI

Third Respondent

ROTTNEST ISLAND AUTHORITY

Fourth Respondent

STATE OF WESTERN AUSTRALIA

Fifth Respondent

FILE NO/S:   CACV 36 of 2025

BETWEEN:   JEFFREY STEWART LEE

Appellant

AND

COLIN ROWLEY BRANDIS

First Respondent

KINGSFIELD HOLDINGS PTY LTD

Second Respondent

PAOLO FILLIPO AMARANTI

Third Respondent

ROTTNEST ISLAND AUTHORITY

Fourth Respondent

STATE OF WESTERN AUSTRALIA

Fifth Respondent

ON APPEAL FROM:

Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA

Coram:   LUNDBERG J

Citation: KINGSFIELD HOLDINGS PTY LTD (in liquidation) -v- ROTTNEST ISLAND AUTHORITY [2025] WASC 121

File Number            :   CIV 2660 of 2015


Catchwords:

Appeal - Practice and procedure - Whether any ground has reasonable prospect of succeeding - Turns on own facts

Appeal - Practice and procedure - Extension of time to appeal - Leave to appeal refused - Turns on own facts

Legislation:

Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(f), r 43(2)(g)(i)
Bankruptcy Act 1966 (Cth), s 60(4)

Result:

CACV 35 of 2025
Appeal dismissed

CACV 36 of 2025
Leave to appeal dismissed
Appeal dismissed

Category:    B

Representation:

CACV 35 of 2025

Counsel:

Appellant : In person
First Respondent : S J Olynyk
Second Respondent : No appearance
Third Respondent : S J Olynyk
Fourth Respondent : S J Olynyk
Fifth Respondent : S J Olynyk

Solicitors:

Appellant : In person
First Respondent : State Solicitor's Office
Second Respondent : No appearance
Third Respondent : State Solicitor's Office
Fourth Respondent : State Solicitor's Office
Fifth Respondent : State Solicitor's Office

CACV 36 of 2025

Counsel:

Appellant : In person
First Respondent : S J Olynyk
Second Respondent : No appearance
Third Respondent : S J Olynyk
Fourth Respondent : S J Olynyk
Fifth Respondent : S J Olynyk

Solicitors:

Appellant : In person
First Respondent : State Solicitor's Office
Second Respondent : No appearance
Third Respondent : State Solicitor's Office
Fourth Respondent : State Solicitor's Office
Fifth Respondent : State Solicitor's Office

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

Armet v Stephen Browne [2024] WASCA 44

Clough Ltd v Forge Group Ltd (in liq) (receivers and managers appointed) [2022] WASCA 179

Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337

Farrant v Westpac Banking Corporation [2024] WASCA 157

Fitzroy River LLC v Tucker [2025] WASCA 118

Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 52

G v W [2021] WASCA 180

In de Braekt v Legal Profession Complaints Committee [2016] WASCA 220

Kingsfield Holdings Pty Ltd (in liq) v Rottnest Island Authority [2025] WASC 121

Kingsfield Holdings Pty Ltd v Lawfirst…

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Lee v Brandis [2025] WASCA 125
Case
[2025] WASCA 125
Decision Date

CaseChat Overview and Summary

The appeal in Lee v Brandis concerns the refusal of leave to appeal in relation to a decision to dismiss an action against the State of Western Australia. The respondent, Mr Lee, had previously been granted bankruptcy, which led to the dismissal of several related proceedings on the basis of deemed abandonment under s 60(3) of the Bankruptcy Act 1966 (Cth). The primary proceedings, action CIV 2660 of 2015, involved claims for damages alleging misleading conduct and misfeasance in public office. Specifically, Mr Lee sought damages for losses he claimed to have suffered due to a letter recommending the continuation of a pharmacy licence at Geordie Bay General Store, and for affidavits sworn in proceedings concerning a rent review clause in a lease agreement. The primary judge dismissed the action on the basis that Mr Lee was unable to satisfy the statutory criterion under s 60(4) of the Bankruptcy Act, which pertains to the continuation of actions concerning rights to recover damages or compensation for personal injury or wrong done to the bankrupt.

The court was required to determine whether Mr Lee's appeal had a reasonable prospect of success and whether the application for an extension of time to appeal was justified. The primary issues revolved around the interpretation of s 60(4) of the Bankruptcy Act and whether the primary judge correctly applied the statutory criterion in dismissing the action. The court also had to consider the legal principles surrounding the dismissal of actions due to bankruptcy and the proper application of s 60(4). Additionally, the court needed to assess whether the application for an extension of time to appeal was made in a timely manner and whether there were exceptional circumstances justifying the extension.

The court held that the primary judge correctly applied the statutory criterion under s 60(4) of the Bankruptcy Act in dismissing the action. The court found that the primary judge correctly identified the principles concerning s 60 of the Bankruptcy Act and that Mr Lee's claims did not fall within the statutory exception permitting a bankrupt to continue proceedings concerning rights to recover damages or compensation for personal injury or wrong done to the bankrupt. The court also found that Mr Lee's appeal did not have a reasonable prospect of success, as the statutory criterion under s 60(4) was not satisfied. Furthermore, the court held that the application for an extension of time to appeal was not justified, as it was not made within a reasonable time and there were no exceptional circumstances warranting an extension. The appeal was therefore dismissed.

The final orders of the court were that the appeals were dismissed, and costs were awarded to the respondent. The court found that the primary judge's decision was correct, and that the statutory criterion under s 60(4) of the Bankruptcy Act was not met. The court also found that the application for an extension of time to appeal was not justified, and that there were no exceptional circumstances warranting an extension. Consequently, the appeals were dismissed, and the primary judge's decision was upheld.

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

Following Mr Lee's bankruptcy, some of the other litigation has also been brought to an end as a result of court rulings to the effect that there was a deemed abandonment pursuant to s 60(3) of the Bankruptcy Act. That, in substance, was the basis of the dismissals in action CIV 2011 of 2022, appeal GDA 7 of 2022, appeal GDA 10 of 2022 and appeal CACV 66 of 2022. See Lee v SOWA [No 2] (Stay Decision) [82]; Lee v Law Complaints Officer as the delegate of the Legal Profession Complaints Committee [6], [37]. The present appeals are concerned with action CIV 2660 of 2015. We will refer to this action as the 'primary proceedings'. We summarised the claims in the primary proceedings in our reasons in Lee v SoWA - 1st Stay Appeal [46] - [48]. For ease of reference it is convenient to substantially reproduce what we stated on that occasion. The nature of the primary proceedings appears from a re-amended statement of claim dated 6 May 2020 (SOC). Mr Lee claims damages for causes of action alleging misleading conduct and misfeasance in public office. There are, in substance, two matters complained of:1.A letter which recommended that the Geordie Bay General Store at Rottnest Island retain a licence which enabled it to continue to sell certain pharmaceutical products in competition with a pharmacy business carried on by Mr Lee at Rottnest Island.2.The swearing of affidavits in proceedings in the State Administrative Tribunal concerning a rent review clause in a lease agreement. The lease agreement was between the RIA and Kingsfield. There are detailed pleas as to the loss and damage Mr Lee claims to have suffered. Mr Lee alleges that, in relation to the letter, a decision not to cancel the Geordie Bay General Store licence was made on the basis of or was influenced by the letter (SOC par 97(a)). Mr Lee contends for a counterfactual whereby but for the letter:[Mr Lee] would have been able to increase sales of Schedule 2 Products from 1 April 2010, and would have derived additional profits during the period from 1 April 2010 to 31 December 2011. (SOC par 97(d)(i)) As to the affidavits, Mr Lee refers to Kingsfield making rent review payments in an additional amount of approximately $15,000 (SOC pars 98 - 99). Self-evidently that is damage allegedly suffered by Kingsfield rather than Mr Lee. Accordingly, so far as Mr Lee is concerned, the relevant aspect of the claim in the primary proceedings is the alleged damage for additional profit that Mr Lee says he would have derived between April 2010 and December 2011. Mr Lee also seeks exemplary damages (SOC par 101). After Mr Lee's bankruptcy, the primary judge considered whether Mr Lee ought to be granted leave to proceed with the primary proceedings pursuant to s 60(4)(a) of the Bankruptcy Act. Relevantly, Mr Lee contended that: (1) the proceedings were not stayed by operation of s 60(2) of the Act; and (2) he could continue to prosecute the proceedings pursuant to s 60(4) of the Act. In previous reasons concerning Mr Lee we have explained why, conceptually, any purported grant of leave to proceed pursuant to s 60(4) of the Bankruptcy Act involves a misapprehension of s 60(4). Section 60(4) does not empower or require an order of the court granting leave to proceed. Nor, conversely, is it necessary for a bankrupt to make an application for leave to proceed pursuant to s 60(4). Rather, if the statutory criterion under s 60(4) is met, a bankrupt may continue a pending proceeding in his or her own name. However, for practical purposes, the apparent misapprehension as to the operation of s 60(4) was irrelevant. The primary judge recognised, correctly, that s 60(4) preserves the right of a bankrupt to continue with an action in respect of the rights specified in s 116(2)(g) of the Bankruptcy Act - relevantly any right to recover damages or compensation for personal injury or wrong done to the bankrupt. Also, in determining whether the criterion under s 60(4) was satisfied the primary judge correctly identified the principles in relation to s 60 of the Bankruptcy Act. See Lee v SoWA - 1st Stay Appeal [9], [13] (see also [15] - [20]).

Ratio Decidendi

Legal Principle Established

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