Lindsay v McMAustralian National UniversityS
[2003] WASC 162
LINDSAY AND OTHERS -v- McMANUS [2003] WASC 162
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASC 162 | |
| 29/08/2003 | |||
| Case No: | CIV:1502/2003 | 8 AUGUST 2003 | |
| Coram: | MASTER SANDERSON | 8/08/03 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Order for delivery up of documents | ||
| B | |||
| PDF Version |
| Parties: | BRIAN DESMOND LINDSAY AND OTHERS LEO McMANUS |
Catchwords: | Practice and procedure Application by plaintiffs for an order for delivery up of documents Application by defendant for interpleader relief Turns on own facts |
Legislation: | Finance Brokers Control Act 1975, s 74 |
Case References: | Nil Bolwell Fibreglass Pty Ltd v Foley [1984] VR 97 Branwhite v Worcester Works Finance Ltd [1969] 1 AC 552 Breen v Williams (1995) 186 CLR 71 Conlan v Registrar of Titles (2001) 24 WAR 299 Cordinup Resorts Pty Ltd v Terana Holdings Pty Ltd (1997) 143 FLR 18 Eng Mee Yong v Letchumann [1980] AC 331 ERS Engines Pty Ltd v Wilson (1994) 35 NSWLR 193 Gibbon v Pease [1905] 1 KB 810 Gollan v Nugent (1988) 166 CLR 18 John F Goulding Pty Ltd v Victorian Railways (1932) 48 CLR 157 Lady Beresford v Driver (1851) 20 LJ (Ch) 476 Mercantile Credit Co Ltd v Hamblin [1965] 2 QB 242 Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109 Nash v Barnes [1922] 41 NZLR 303 Olsson v Dyson (1969) 120 CLR 365 Re Global Finance Group Pty Ltd (In Liq); Ex parte Read [1999] WASC 23 Re Oakleigh Acquisitions Pty Ltd (In Liq); Ex parte Conlan [2003] WASC 75 Sandgate Corporation Pty Ltd (In Liq) v Ionnou Nominees Pty Ltd (2000) 22 WAR 172 Valgas v Connell (1994) 120 FLR 345 Watson v Park Royal (Caterers) Ltd [1961] 1 WLR 727 Wentworth v de Montfort (1988) 15 NSWLR 348 Western National Plant Pty Ltd & Ors v Smith Broughton Pty Ltd & Anor, unreported; SCt of WA; Library No 980368; 26 June 1998 Wilson v Lombank Ltd [1963] 1 WLR 1294 Yasuda Fire & Marine Insurance Co of Europe Ltd v Orion Marine Insurance Underwriting Agency Ltd [1995] QB 174 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiffs
AND
LEO McMANUS
Defendant
Catchwords:
Practice and procedure - Application by plaintiffs for an order for delivery up of documents - Application by defendant for interpleader relief - Turns on own facts
Legislation:
Finance Brokers Control Act 1975, s 74
Result:
Order for delivery up of documents
(Page 2)
Category: B
Representation:
Counsel:
Plaintiffs : Mr D H Solomon & Mr J C Giles
Defendant : Mr P B O'Neal
Solicitors:
Plaintiffs : Solomon Brothers
Defendant : Raj Malhotra
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Bolwell Fibreglass Pty Ltd v Foley [1984] VR 97
Branwhite v Worcester Works Finance Ltd [1969] 1 AC 552
Breen v Williams (1995) 186 CLR 71
Conlan v Registrar of Titles (2001) 24 WAR 299
Cordinup Resorts Pty Ltd v Terana Holdings Pty Ltd (1997) 143 FLR 18
Eng Mee Yong v Letchumann [1980] AC 331
ERS Engines Pty Ltd v Wilson (1994) 35 NSWLR 193
Gibbon v Pease [1905] 1 KB 810
Gollan v Nugent (1988) 166 CLR 18
John F Goulding Pty Ltd v Victorian Railways (1932) 48 CLR 157
Lady Beresford v Driver (1851) 20 LJ (Ch) 476
Mercantile Credit Co Ltd v Hamblin [1965] 2 QB 242
Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109
Nash v Barnes [1922] 41 NZLR 303
Olsson v Dyson (1969) 120 CLR 365
Re Global Finance Group Pty Ltd (In Liq); Ex parte Read [1999] WASC 23
Re Oakleigh Acquisitions Pty Ltd (In Liq); Ex parte Conlan [2003] WASC 75
Sandgate Corporation Pty Ltd (In Liq) v Ionnou Nominees Pty Ltd (2000) 22 WAR 172
(Page 3)
Valgas v Connell (1994) 120 FLR 345
Watson v Park Royal (Caterers) Ltd [1961] 1 WLR 727
Wentworth v de Montfort (1988) 15 NSWLR 348
Western National Plant Pty Ltd & Ors v Smith Broughton Pty Ltd & Anor, unreported; SCt of WA; Library No 980368; 26 June 1998
Wilson v Lombank Ltd [1963] 1 WLR 1294
Yasuda Fire & Marine Insurance Co of Europe Ltd v Orion Marine Insurance Underwriting Agency Ltd [1995] QB 174
(Page 4)
1 MASTER SANDERSON: This is the return of two chamber summonses. The first in time was the plaintiffs' summons seeking the delivery up of certain documents in the defendant's possession. The second summons was issued by the defendant and sought interpleader relief. The summonses were heard together. After hearing somewhat truncated argument, I indicated to the parties that I would make orders which resulted in the documents in question being delivered by the defendant to the plaintiffs' solicitors. I also advised the parties I would publish short reasons for adopting that course of action. These are those reasons.
2 The plaintiffs are companies and individuals who invested in loans brokered by Geraldton Finance Company Ltd ("GFC"). The plaintiffs allege in their statement of claim that for the purposes of each of the plaintiffs' loan, GFC was the agent of the plaintiffs. It is then said that all documents created or received by GFC in the course of the agency are the property of one or more of the plaintiffs. The plaintiffs say they have demanded delivery of the documents to them and the defendant has refused.
3 The defendant is the supervisor of GFC. He was appointed to that position on 1 July 2002, pursuant to s 74 of the Finance Brokers Control Act 1975. The defendant says, and it is uncontested, that he came into possession of GFC's documents in carrying out his duty as supervisor: see the defendant's affidavit sworn 9 June 2003, pars 7 to 10. He has now completed his duties of supervisor and against his will, he has been left in possession of GFC's documents: see the defendant's affidavit sworn 28 July 2003, par 42.
4 The defendant's position can be summarised in this way. Given that he has discharged his duties as supervisor, he has no further interest in GFC's documents. Despite his best efforts, he has been unable to find anyone, including GFC or its former directors, who is prepared to take the documents from him. He acknowledges that the plaintiffs may have a right to some or perhaps even all of the documents in his possession, pursuant to an agency relationship as between the plaintiffs and GFC. But, he says, he is not in a position to determine the scope of the agency relationship in each case and whether or not the plaintiffs are entitled to all of the documents in his possession. He says that if the order sought by the plaintiffs was made, it would necessitate his examining all of the documents and making a decision as to what documents were rightly the property of the plaintiffs. That, he says, is oppressive. Moreover, he takes the view that he does not have power under the provisions of the
(Page 5)
- Finance Brokers Control Act to undertake such a sorting exercise. It was the defendant's position that he would be happy to deliver the documents to the Court and that is why he sought interpleader relief. If some third party should, at a later date, claim ownership or entitlement to the documents the defendant does not want to be at risk as a consequence of his having delivered the documents to the plaintiffs.
5 Put in that way, it can be seen that the argument is entirely arid. The only parties who want the documents are the plaintiffs. There is every chance that the plaintiffs are entitled to most, if not all, of the documents. No third party is maintaining or, it seems, is likely to maintain any claim which runs counter to the claims of the plaintiffs. For that reason, interpleader relief is not really a solution to the defendant's difficulties. But some order giving the plaintiffs access to the documents and protecting the defendant is appropriate.
6 It was for that reason that I ordered that the documents be delivered to the offices of the plaintiffs' solicitors. The order allowed the solicitors to sort and copy any or all of the documents. The order was subject to an undertaking from the plaintiffs' solicitors that the documents would not be destroyed and that they would not part with custody of any or all of the documents without further order of the Court. There was a further undertaking that third parties would be granted access to the documents upon request and subject to establishing an entitlement to inspect the documents. I directed the parties to bring in a minute of agreed orders or failing agreement, to relist the matter for brief argument. I invited both parties to make submissions with respect to costs.
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