LPH Developments Pty Ltd v Jameson Moore Pty Ltd

Case [2018] WASCA 95

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   LPH DEVELOPMENTS PTY LTD  -v- JAMESON MOORE PTY LTD [2018] WASCA 95

CORAM:   MITCHELL JA

CHANEY J

HEARD:   14 JUNE 2018

DELIVERED          :   14 JUNE 2018

FILE NO/S:   CACV 30 of 2018

BETWEEN:   LPH DEVELOPMENTS PTY LTD  as trustee for LPH DEVELOPMENTS KEEGAN STREET

Appellant

AND

JAMESON MOORE PTY LTD

Respondent

ON APPEAL FROM:

Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA

Coram:   MASTER SANDERSON

File Number             :   CIV 2343 OF 2015


Catchwords:

Appeal from interlocutory orders concerning matter of practice and procedure - Security for costs - Whether error in ordering further security - Turns on own facts

Legislation:

Corporations Act 2001 (Cth), s 1335(1)

Result:

Leave to appeal refused
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant : Mr T Galic
Respondent : Ms K R Lendich

Solicitors:

Appellant : MGM O'Connor Lawyers
Respondent : Mettam Legal

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

Dodds v Kennedy [2011] WASCA 32

House v The King (1936) 55 CLR 499

Kelbush Pty Ltd v Australia and New Zealand Banking Group Ltd [2016] WASCA 14; (2016) 49 WAR 374

LPH Developments Pty Ltd v Jameson Moore Pty Ltd (No 2) [2017] WASC 128

LPH Developments Pty Ltd v Jameson Moore Pty Ltd (No 3) [2017] WASC 284

LPH Developments Pty Ltd v Jameson Moore Pty Ltd [2015] WASC 416

The State of Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40

Traynor v Cunningham (No 2) [2017] WASCA 159

Westonia Earthmoving Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2013] WASC 57

Wilson v Metaxas [1989] WAR 285

REASONS OF THE COURT:

  1. At the hearing of this appeal, we made orders refusing leave to appeal and dismissing the appeal.  These are our reasons for making those orders.

  2. The appellant seeks leave to appeal against the interlocutory orders of the master made in the primary proceedings on 22 February 2018. The orders require the appellant to give further security for costs in the amount of $50,000, and stay the original action and counterclaim pending compliance with that requirement. The orders were made under s 1335(1) of the Corporations Act 2001 (Cth).

  3. In the primary proceedings, the appellant claims damages for breach of a contract for the sale a commercial property in O'Connor by the respondent to the appellant.  The claimed damages include expenditure in respect of the property, termination costs, the difference between the value of the property and the purchase price under the contract with the respondent and the lost opportunity to profit from the commercial development of the property.  The respondent counterclaims for damages for breach of the same contract, being the difference between the amount realised on the resale of the O'Connor property and the purchase price payable under the contract with the appellant, as well as resale costs.

  4. An initial application for security for costs was dismissed by Beech J in 2015.  A significant consideration for Beech J was…

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LPH Developments Pty Ltd v Jameson Moore Pty Ltd [2018] WASCA 95
Case
[2018] WASCA 95
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Western Australia, LPH Developments Pty Ltd has appealed against interlocutory orders made by a master in a proceeding against Jameson Moore Pty Ltd. The primary issue in dispute was the master's decision to require further security for costs, a procedural matter rather than a substantive one. The court was required to determine whether the master's decision was erroneous and, if so, whether it warranted the grant of leave to appeal under s 60(1)(f) of the Supreme Court Act 1935 (WA). This provision allows for an appeal from an interlocutory decision, but generally requires that the decision below be plainly wrong or attended by sufficient doubt to justify the grant of leave.

The court considered that the master's orders were clearly interlocutory, and therefore, leave to appeal was not automatically granted. The court noted that leave should not be granted unless the decision below was plainly wrong or was attended by sufficient doubt to justify the grant of leave and a substantial injustice would be done if it remained undisturbed. The court held that the requirement for leave to appeal against an interlocutory decision was a substantive restriction that advanced the administration of justice by preventing procedural disputes from distracting the court and the parties from the determination of contested substantive rights. The court emphasised that special restraint must be exercised when the interlocutory order under appeal was one concerning practice and procedure.

After considering the circumstances of the case, the court found that the master's decision was not plainly wrong or attended by sufficient doubt to warrant or justify the grant of leave to appeal. The court held that the grounds of appeal did not disclose any proper basis for interfering with the exercise of the master's discretion in a matter concerning practice and procedure. The appeal was dismissed, and leave to appeal against the interlocutory orders made by the master was refused. The decision was certified as the reasons for the court's decision.

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

As the master's orders are clearly interlocutory in character, the appellant requires leave to appeal under s 60(1)(f) of the Supreme Court Act 1935 (WA). Generally, leave should not be granted unless the decision below is plainly wrong or is attended by sufficient doubt to justify the grant of leave and a substantial injustice would be done if it remains undisturbed.[15] The requirement for leave to appeal against an interlocutory decision is no mere technicality or procedural nicety. Rather it is a substantive restriction which advances the administration of justice by preventing procedural disputes distracting the court and the parties from the determination of contested substantive rights.[16] Moreover, special restraint must be exercised when the interlocutory order under appeal is one concerning practice and procedure.[17][15] The State of Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40, 54 - 57; Wilson v Metaxas [1989] WAR 285, 294.[16] Kelbush Pty Ltd v Australia and New Zealand Banking Group Ltd [2016] WASCA 14; (2016) 49 WAR 374 [81].[17] Dodds v Kennedy [5]; Traynor v Cunningham (No 2) [2017] WASCA 159 [41]. In the circumstances we have outlined, the master's decision is not plainly wrong or attended by sufficient doubt to warrant or justify the grant of leave to appeal. The grounds of appeal do not disclose any proper basis for interfering with the exercise of the master's discretion in a matter concerning practice and procedure. For these reasons, we refused to grant leave to appeal against the interlocutory orders made by the master and dismissed the appeal.I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.CRASSOCIATE TO THE HONOURABLE JUSTICE MITCHELL14 JUNE 2018