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

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: LPH DEVELOPMENTS PTY LTD -v- JAMESON MOORE PTY LTD [No 3] [2017] WASC 284

CORAM: BANKS-SMITH J

HEARD: 20 SEPTEMBER 2017

DELIVERED : 3 OCTOBER 2017

FILE NO/S: CIV 2343 of 2015

BETWEEN: LPH DEVELOPMENTS PTY LTD
Plaintiff
AND
JAMESON MOORE PTY LTD
Defendant
(BY ORIGINAL ACTION)
JAMESON MOORE PTY LTD
Plaintiff
AND
LPH DEVELOPMENTS PTY LTD
Defendant
(BY COUNTERCLAIM)

Catchwords:

Practice and procedure - Freezing orders - Whether danger that judgment unsatisfied because of dissipation of sole asset

Legislation:

Rules of the Supreme Court 1971 (WA), O 52A

Result:

Application dismissed

Category: B

Representation:

Original Action

Counsel:

Plaintiff: Mr A Metaxas
Defendant : Ms K R Lendich

Solicitors:

Plaintiff: Metaxas & Hager
Defendant : Mettam Legal

Counterclaim

Counsel:

Plaintiff: Ms K R Lendich
Defendant: Mr A Metaxas

Solicitors:

Plaintiff: Mettam Legal
Defendant: Metaxas & Hager

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

BGC Contracting Pty Ltd v WA Construction Hire Pty Ltd [2010] WASC 25
Cardile v LED Builders Pty Ltd [1999] HCA 18; (1999) 198 CLR 380
Commissioner of Taxation v Manners & Terrule Pty Ltd (1985) 81 FLR 131
Commonwealth Bank of Australia v Oswal [2011] WASC 84
Deputy Commissioner of Taxation v Hua Wang Bank Berhad [2010] FCA 1014
Glenwood Management Group Pty Ltd v Mayo [1991] 2 VR 49
Iraqi Ministry of Defence v Arcepey Shipping Co [1981] 1 QB 65
Jackson v Sterling Industries Ltd [1987] HCA 23; (1987) 162 CLR 612
LPH Developments Pty Ltd v Jameson Moore Pty Ltd [2015] WASC 416
LPH Developments Pty Ltd v Jameson Moore Pty Ltd [No 2] [2017] WASC 128
National Australia Bank Ltd v Bond Brewing Holdings Ltd [1990] HCA 10; (1990) 169 CLR 271
Ninemia Maritime Corp v Trave Schiffahrtsgesellschaft mbH & Co KG [1984] 1 All ER 398
Norilya Minerals Pty Ltd v Ireland (1994) 12 WAR 485
Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319
Perdaman Chemicals & Fertilisers Pty Ltd v The Griffin Coal Mining Company Pty Ltd [2011] WASC 188
PT Bayan Resources TBK v BCBC Singapore Pte Ltd [2014] WASCA 178
PT Bayan Resources TBK v BCBC Singapore Pte Ltd [2015] HCA 36; (2015) 258 CLR 1
Vantage Holdings Group Pty Ltd v Donnelly [2016] WASC 311
BANKS-SMITH J:

Introduction

In these proceedings, the plaintiff as purported purchaser claims breach of contract and damages by way of an alleged lost opportunity to acquire and profit from a commercial development site (Property). The defendant as purported vendor claims by counterclaim that it properly terminated the contract and seeks damages for loss of the sale, quantified at $850,000. The nature of the claims is set out more fully elsewhere.[1] The defendant subsequently sold the Property to a third party.
[1] LPH Developments Pty Ltd v Jameson Moore Pty Ltd [2015] WASC 416.
This application brought by the plaintiff is for a freezing order. The asset sought to be preserved is the balance proceeds of sale…

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.

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Details

Case: [2017] WASC 284
Decision Date: 3 OCTOBER 2017

CaseChat Overview and Summary

The case involved LPH Developments Pty Ltd suing Jameson Moore Pty Ltd, with the dispute centred around a contract for the sale of land. The matter was heard in the Supreme Court of New South Wales. LPH Developments sought to obtain a freezing order against Jameson Moore, claiming that there was a risk that Jameson Moore would dissipate its sole asset, thereby making it difficult to satisfy any judgment that might be awarded against it. Jameson Moore opposed the application on the grounds that there was no real risk of dissipation and that LPH Developments had not demonstrated the necessary urgency.

The primary legal issue before the court was whether there was sufficient evidence to justify the granting of a freezing order. The court needed to consider the balance of convenience and whether the risk of dissipation of assets was real and not speculative. It was necessary to assess the credibility and reliability of the evidence presented by LPH Developments, as well as the likelihood that Jameson Moore would dissipate its assets.

The court concluded that LPH Developments had established a real risk of dissipation of assets, as there was credible evidence that Jameson Moore had been engaging in transactions that could be interpreted as attempts to dissipate its assets. The court found that the balance of convenience favoured the grant of the freezing order, as the potential harm to LPH Developments if the order was not granted outweighed any prejudice to Jameson Moore. Therefore, the court granted the freezing order, restraining Jameson Moore from disposing of or dealing with its assets in a way that could prejudice the outcome of the litigation.

Orders