Lunt v Briggs [No 3] - [2010] WASC 219

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: LUNT -v- BRIGGS [No 3] [2010] WASC 219

CORAM: EM HEENAN J

HEARD: 1 JULY 2010

DELIVERED : 1 JULY 2010

PUBLISHED : 17 AUGUST 2010

FILE NO/S: CIV 1501 of 2001

BETWEEN: WILLIAM TREVOR LUNT
Plaintiff
AND
PETER BRIGGS
Defendant

FILE NO/S :CIV 1974 of 2001

BETWEEN :WILLIAM TREVOR LUNT
Plaintiff
AND
NEW RESOURCE HOLDINGS PTY LTD
Defendant

Catchwords:

Application to vary order suspending enforcement of judgments - Consent order - Interlocutory order - Three actions - Appeals pending - Unexpected delays in hearing of appeals - Delays by solicitors in preparations for hearing of appeals - Delays by solicitors in pursuing interlocutory applications - Application for imposition of terms on order for suspension of judgment - Consent order relating to third action - Variation of interlocutory consent orders

Legislation:

Rules of the Supreme Court 1971 (WA), O1 r 4A, O1 r 4B

Result:

Order suspending enforcement of judgments set aside without prejudice to ability of any party to apply for a further suspension order on the merits

Category: B

Representation:

CIV 1501 of 2001

Counsel:

Plaintiff: Mr B W Duckham
Defendant: Mr P G McGowan

Solicitors:

Plaintiff: B W Duckham & Co
Defendant: Vincent Partners

CIV 1974 of 2001

Counsel:

Plaintiff: Mr B W Duckham
Defendant: Mr P G McGowan

Solicitors:

Plaintiff: B W Duckham & Co
Defendant: Vincent Partners

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

Briggs v Lunt [2010] WASCA 127
Cliffs Robe River Iron Associates v Dravo Pty Ltd [1988] WAR 322
Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13; (1993) 82 LGERA 158
Lunt v Briggs [2009] WASC 134
Lunt v Briggs [No 2] [2009] WASC 243
Lunt v New Resource Holdings Pty Ltd [2010] WASCA 126
New Resource Holdings Pty Ltd v Lunt [No 2] [2008] WASC 140
New Resource Holdings Pty Ltd v Lunt [No 3] [2008] WASC 221
Norilya Minerals Pty Ltd v Easterday [2009] WASC 191
Purcell v FC Trigell Ltd [1971] 1 QB 358

EM HEENAN J: In these two actions I delivered reasons for decision on 18 May 2009 and ordered that judgment be entered for the plaintiff in the first action in the sum of $517,900, plus interest to be calculated as thereby specified but reserving liberty to apply to resolve any issues arising from the calculation of interest. Similarly, in the second action, I ordered that judgment be entered for the plaintiff in the amount of $482,000 plus interest to be calculated again in the manner specified, but once more reserving liberty to apply in relation to any issues arising from the calculation of interest: Lunt v Briggs [2009] WASC 134.
Issues did arise about the calculation of interest on each judgment and, after hearing from the parties and receiving further submissions, I gave reasons dealing with the issues of interest on 31 August 2009. I ordered that, with interest, judgment in the first action for the plaintiff should be entered in the amount of $980,266 and, similarly, that judgment for the plaintiff should be entered in the second action, with interest, for a total amount of $830,386: Lunt v Briggs [No 2] [2009] WASC 243.
Since then, appeals have been instituted from both judgments and the appeals have been proceeding through their preliminary stages in the Court of Appeal. At this recent hearing no date had been set for the hearing of the two appeals or, so at least, was I informed by counsel for the parties.
There is also a third action between two of these parties, namely CIV 1489 of 2001: New Resource Holdings Pty Ltd v Lunt [No 2] [2008] WASC 140. That action was heard by Templeman J in April and May 2008. For reasons delivered by his Honour on 16 July 2008, judgment was entered for New Resource Holdings Pty Ltd against Mr Lunt in the amount of $200,000, together with interest.
The position is that in CIV 1489 of 2001, the unsuccessful defendant (Mr Lunt) has also appealed from the judgment of Templeman J and that appeal is also pending before the Court of Appeal (CACV 78 of 2008). Again, according to the submissions of counsel, that appeal had not been listed for hearing at the time of this last application.
In that third action Templeman J later heard applications to reopen the case for special orders for costs and for an order to suspend enforcement of the judgment. For reasons given on 15 October 2008, his Honour ordered that suspension of enforcement of that judgment should be granted: New Resource Holdings Pty Ltd v Lunt [No 3] [2008] WASC 221. The reasons for that order suspending enforcement of this judgment are extensive but, essentially, reduce to an acceptance by his Honour that there was a close interrelationship between the claims which had been determined in that action and the two other actions brought by Mr Lunt (namely, CIV 1501 of 2001 and CIV 1974 of 2001) then still pending. This meant that Mr Lunt had reasonably arguable prospects of establishing countervailing claims which might be put against the judgment which had been entered in favour of New Resource Holdings Pty Ltd in the action which Templeman J had heard and determined. The rationale, therefore, for the suspension order made by Templeman J was to allow the two actions, which I ultimately heard and determined, to be heard and proceed to judgment before enforcement of the judgment in CIV 1489 of 2001 because it might emerge that Mr Lunt would recover a judgment or judgments which would have the effect that, on balance, he would not be indebted to New Resource Holdings Pty Ltd but instead that company might be indebted to him.
Having regard to the judgments which I ordered should be entered in CIV 1501 of 2001 and CIV 1974 of 2001, that has, in practical effect, since occurred. That observation should not be taken as accepting that these judgments give rise to any legal or equitable rights of set‑off. That point has not been raised. Nevertheless, the position adopted by the parties, in effect, is that if and when the judgments come to be satisfied, the practical result will be that only the balance due after taking into account both judgments between Mr Lunt and New Resource Holdings Pty Ltd (that is, in CIV 1489 of 2001, the judgment of Templeman J of 16 July 2008, and CIV 1974 of 2001, which is my judgment of 18 May 2009) will be payable. Whether that assumption is justified or will be fulfilled in events yet to unfold remains to be seen ‑ complications could arise if one or both of the parties became insolvent and for that reason was unable to pay his or its liabilities in full.
Once judgments in the two actions tried before me were entered on 18 May 2009 the reason for the order for suspension of enforcement of the judgment entered by Templeman J had passed. Whether that order for suspension should stand, be varied, or be set aside then became a further question.
Following the judgments in the two actions before me, applications for suspension of the execution of those judgments were made by Mr Briggs and by New Resources Holdings Pty Ltd, the defendants in both actions. At about the same time, an application dated 17 July 2009 was made by Mr Lunt, the plaintiff in both actions, seeking orders to restrain the defendants from removing any assets from Western Australia or Australia. He sought orders requiring the defendants to place on deposit the proceeds of certain alleged sales of motor vehicles and an injunction restraining the defendants from disposing any further assets. They also sought orders requiring the defendants to provide statements of their assets and liabilities verified by affidavit within a limited time. Despite various attempts to bring that application of 17 July 2009 on for hearing, no significant progress occurred until 29 April 2010, when counsel for the plaintiffs, judgment creditors, sought to amend the application in a number of respects, including a claim for an injunction to restrain the defendant, Mr Briggs and his wife, Mrs R Y Briggs (not a party to any of the litigation) from parting with or charging the house and land constituting their home in a beachside suburb. By that amended application, the judgment creditors, the plaintiffs in both actions, Mr Lunt, also sought an order that the defendant, Mr Briggs, be examined as to the means of the defendants to satisfy the judgments. Again by a late amendment, the plaintiff sought an order that 'the consent order made 30 September 2009 be set aside'. I have not previously made reference to this consent order but it is central to the present application and must now be explained.
On or about 30 September 2009 the three parties to these two actions, including as they did the two parties to action CIV 1489 of 2001, which was the action determined by Templeman J and which was also under appeal, reached some measure of agreement about suspension of enforcement of each of the three judgments pending the resolution of the three appeals. This agreement was embodied in two sets of consent orders, one filed and made in these two actions and the other in CIV 1489 of 2001. At this point, it is only necessary to record the order by consent made in these two actions. The document is dated 30 September 2009 but was filed in the registry on 4 November 2009 and it states:
Pursuant to O 43 r 16 of the Rules of the Supreme Court and by consent IT IS ORDERED THAT:
1.Subject to paragraph 2, the plaintiff will not be entitled to proceed to enforce the judgments in CIV 1501 of 2001 or CIV 1974 of 2001 until the judgment in the appeal CACV 60 of 2009 (being the appeal of the decision in CIV 1501 of 2001 and CIV 1974 of 2001) has been handed down.
2.In the event of any appellant in CACV 60 of 2009 not proceeding with his or its respective appeal within the time limit set down by the Rules of the Court, the plaintiff will be entitled to apply for the discharge of the suspension order.
3.Costs be reserved.
By the Court
Registrar
I was informed by counsel, and it is a matter of record, that a similar order, but with necessary adaptations, was made in action CIV 1489 of 2001, also by consent.
Since then, it is apparent that the progress towards the determination of the three pending appeals has been much slower and longer than Mr Lunt had hoped. On several later occasions, Mr Lunt has raised the possibility that I should set aside or vary the orders staying enforcement of the three judgments, including the judgment entered after the decision by Templeman J. That proposition was raised at a hearing before me on 3 May 2010, when the plaintiff foreshadowed a number of variations desired, including proposals that the judgment debtors in these two actions should pay moneys into court or secure assets, including assets apparently owned by third parties, pending the determinations of the appeals.
I declined to make orders as sought on that occasion but I did, on 3 May 2010, direct that Mr Lunt should provide the defendants with the particulars of the variations sought to be made to the order of 30 September 2009 and that the defendants should state whether they contended that any further variation should be made to that order and, in that case, on what grounds. I also directed affidavits should be filed by the defendants upon which they sought to rely in opposition to any discharge or variation of the order of 30 September 2009 and that, in the event that the parties could not agree to any discharge or variation of that order, the matter should be relisted before me for mention on or about 11 June 2010.
Those proposals were, of course, designedly restricted only to the judgments in these two actions. I observed, in the course of discussions with counsel on 3 May 2010, that, not being the judge who had heard or determined CIV 1489 of 2001 and that judgment being under appeal, it would appear that, in all the circumstances, which included the fact that Templeman J had since retired, any application for a variation, removal or renewal of the order suspending enforcement of judgment in CIV 1489 of 2001 should be dealt with by the Court of Appeal. At that point, the plaintiffs did not have any application to vary the suspension of enforcement order of the judgment of Templeman J and did not press the matter further. Since then, however, I note that Mr Briggs applied to the Court of Appeal to have removed to the Court of Appeal the application to set aside or vary the order suspending enforcement of these two judgments. That application was heard by Pullin JA on 11 June 2010 and dismissed: Briggs v Lunt [2010] WASCA 127. Another application dealing with grounds of appeal in the appeal from the judgment of Templeman J was heard by Pullin JA at the same time and was also dismissed: Lunt v New Resource Holdings Pty Ltd [2010] WASCA 126. This second matter did not bear on any application to set aside or vary orders suspending enforcement of any of the judgments and need not be mentioned further.
Most recently, on 1 July 2010 the plaintiffs brought on for mention their application for a discharge of the order of 30 September 2009, referred to in my order of 3 May 2010. In doing so, they have proposed that the matter should be heard and determined at a date to be fixed in the future, some time in September or October 2010, against a background where they claim that it would then still not be known when the appeals would be heard. On being asked why the matter had not been brought on for hearing on or about 11 June 2010 as provided in the order of 3 May 2010, counsel offered the explanation that it was not possible to obtain a hearing from the court on or about that date. That was not the case because the time had been kept available expressly for this contingency. On further inquiry, it turned out that 11 June 2010 or thereabouts was not 'convenient' for counsel or the solicitors on either side and that, therefore, because of 'comity between solicitors' it had been agreed that it should be put off for some future unspecified date. Having regard to the protestations by the parties and their solicitors and counsel about the urgency of this matter, it is most incongruous and unimpressive that such a laissez faire attitude should be adopted, particularly where the court had taken pains to ensure that these matters could, if necessary, be dealt with with despatch.
All indications are to the effect that these applications are turning into the kind of obstructive and non‑productive controversy which has so bedevilled many interlocutory applications in the past and which modern systems and priorities of case management are designed to eliminate: RSC O 1 r 4A and r 4B. Nevertheless, counsel for the plaintiffs persisted in pursuing the application to set aside or vary the consent order of 30 September 2009 for the suspension of enforcement of judgments but, in doing so, sought to disregard the associated suspension order in CIV 1489 of 2001.
By this point, it had become abundantly apparent that these interlocutory proceedings were becoming bogged down and were themselves generating a series of hearings and controversies requiring time and effort out of all proportion to any possible utility. The idea that the order suspending enforcement of these two judgments could be set aside or modified without, at the same time, some equivalent alteration being made to the suspension order in action CIV 1489 of 2001 was completely unrealistic and was capable, if achieved, of leading to significant prejudice or injustice. If there were to be any variations or alterations to the orders suspending enforcement of these two judgments, attention should also be given to the terms of the order suspending judgment in the third action, CIV 1489 of 2001.
Because that was a matter which, in the absence of special reasons, as it appeared to me, should be dealt with by the Court of Appeal, it did not seem to be practicable for these matters to be dealt with by a judge of the general division whose judgments in the action were already subject to appeal. The basis, if any, for continuing, varying or setting aside either of the two orders imposing suspensions on the enforcement of the three judgments appeared to me to require a balancing exercise and the perspective of the court exercising appellate jurisdiction over all three causes.
This became even more apparent when the impact of the terms and conditions sought to be imposed by the plaintiffs on any revised suspension order in relation to these two judgments was appreciated. The terms sought included claims for a large payment into court by the defendants pending the disposition of the appeals but did not involve any disclosure of the means or circumstances of the plaintiff which, it would seem, must be relevant to the continuation of the stay order in the third action, CIV 1489 of 2001.
The position of both defendants is that there can or should be no variation to any of the orders suspending enforcement of the judgments because each of the two orders was made by consent and reflects a contract between the parties rather than any determination of the merits by the court. Counsel for the defendants cited Norilya Minerals Pty Ltd v Easterday [2009] WASC 191 where Le Miere J examined the authorities dealing with variations of orders made by consent. In doing so, his Honour referred to earlier authorities and said at [73] ‑ [74]:
In Cliffs Robe River Iron Associates v Dravo Pty Ltd [1988] WAR 322 the Full Court held that orders made by consent could be varied by the court because consent by a party to an application made by the opposing party did not constitute a binding agreement between the parties. The situation was more accurately described as two solicitors conferring for the purpose of formulating an order which could be made without argument (324). Kennedy J referred to and adopted the following distinction drawn by Lord Denning in Siebe Gorman & Co Ltd v Pneupac Ltd [1982] 1 WLR 185:
There are two meanings to the words 'by consent' … One meaning is this: the words 'by consent' may evidence a real contract between the parties. In such a case the court will only interfere with such an order on the same grounds as it would with any other contract. The other meaning is this: the words 'by consent' may mean 'the parties hereto not objecting'. In such a case there is no real contract between the parties. The order can be altered or varied by the court in the same circumstances as any other order that is made by the court without consent of the parties (328).
There is some difference between English and Australian authorities about whether the court will only interfere with a consent order based on a contract on the grounds that it interferes with any other contract: see Paino v Hofbauer (1988) 13 NSWLR 193, 198; Morgan v 45 Flers Avenue Pty Ltd (1987) 11 NSWLR 573, 579.
before proceeding to decide that the court should not vary the consent order made in that case.
In the present case, however, counsel for the plaintiffs submit that the agreement underlying the consent order of 30 September 2009 was based on a common understanding that the appeals would be heard and determined within 12 months. Whether that was ever a realistic estimation is not a matter upon which I can or should express a view. However, it seems most unlikely that these appeals will be determined within 12 months of that order. The cause for this is due largely to the failure by the parties to adhere to the applicable time limits for the various stages in the progress of the appeals ‑ see Pullin JA in Briggs v Lunt [2010] WASCA 127 [11]. Furthermore, there is nothing to show that the agreement leading to the consent orders of 30 September 2009 took into account the possibility of any material change in the circumstances of the parties such as might have the capacity to affect or prejudice enforcement of any of the judgments. However, the plaintiffs now seek to advert to a series of alleged commercial transactions which may or may not have a bearing on those potentialities.

In Cliffs Robe River Iron Associates v Dravo Pty Ltd [1988] WAR 322, Kennedy J also cited a passage of the judgment of Lord Denning MR in Purcell v FC Trigell Ltd [1971] 1 QB 358, 363 ‑ 364 where his Lordship said:
The plaintiff says that no appeal lies from an order made with the consent of the parties, except in circumstances in which a contract may be set aside or varied, such as mistake, misrepresentation, and so forth: and that this applies on interlocutory orders as well as to final orders. Mr Hicks for the plaintiff relied in this regard on Toder v Sansam (1775) 1 BPC 468. I think that the plaintiff puts his case too high. I think that a party, who gets leave, can appeal from a consent order on wider grounds, at any rate in interlocutory matters. He can appeal, for instance, on the ground of his own mistake: see Mullins v Howell (1879) 11 Ch D 763, where Sir George Jessel MR, said, at p 766, 'there is a larger discretion as to orders made on interlocutory applications than as to those which are final judgments'.
In Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13; (1993) 82 LGERA 158 the New South Wales Court of Appeal addressed the question of whether there was jurisdiction to set aside consent orders implementing a compromise agreement in proceedings in the Land and Environment Court of New South Wales where one of the parties had consented to the order under the influence of a mistake. In concluding that the court did have that jurisdiction Sheller JA, with whom Kirby P and Powell JA agreed, observed at (30):
A superior court's inherent jurisdiction to uphold, protect and fulfil its function by ensuring that justice is administered according to law and in an effective manner, in my opinion, enables it, in the absence of a statutory limitation, to discharge or revoke a consent order made by it giving effect to a compromise of proceedings before the court and entered into by a party under a mistake.
It has not been suggested that the consent order of 30 September 2009 was entered into by either of the parties under a mistake but it was entered into upon a common understanding that the appeals would be heard and determined within about 12 months and subject to the express terms that if appeal CACV 60 of 2009 did not proceed in accordance with the time limits set out in the Rules of court, the plaintiff would be entitled to apply for the discharge of the suspension order.
The first phase of that common assumption, namely that the appeals would proceed expeditiously, in accordance with the timetable prescribed by the rules, has obviously not been satisfied. The indications are that the second phase, namely that the appeals would be heard and determined within 12 months, seems most unlikely to be satisfied.
These common assumptions by both parties have been revealed to be erroneous and it is also clear that neither of the appeals has proceeded according to the timetable set down by the Rules. Having regard to the fact that this consent order was in relation to an interlocutory matter and designed to preserve the status quo pending the resolution of the appeals within what was anticipated to be a reasonable period it can be seen that the purpose of the agreement was to achieve suitable control of the parties' abilities to enforce the judgments in the interim rather than to alter or affect, in any lasting way, the rights of the respective parties.
Accordingly, I consider it open for the consent orders to be set aside or varied. The setting aside or varying the consent orders in this particular case not only follows the basis and terms of the agreement between the parties as embodied in the consent orders, but it also involves this court controlling the proceedings which should lead to them being managed more efficiently and expeditiously in the future by removing what would otherwise be a barrier to a determination of whether, in the belated circumstances now prevailing, there should be a continuation of the orders staying enforcement of the judgments and, if so, for how long or on what terms.
The combination of these considerations satisfies me that the court should consider the terms, if any, upon which these suspension orders should be allowed to continue, having regard to the commercial interests and status of the parties and the likely progress of the pending appeals. Despite submissions to the contrary from the plaintiffs, I do not see how such an exercise can or should be undertaken without a similar review of the suspension order made in the third action, CIV 1489 of 2001. No such review can adequately be undertaken while the current consent order stands and I am satisfied that the circumstances have so altered as to render the basis for that order being reviewed so justifying it being set aside. Setting aside the order will allow the necessary review to take place and, better still, will allow any such review to take place concurrently with a review of the corresponding suspension order in CIV 1489 of 2001.
This raised the question of whether or not I could make an order dealing with the suspension order in CIV 1489 of 2001 without a formal application being made in that regard by Mr Briggs. Counsel for Mr Lunt sought to take this point but, when that arose, counsel for Mr Briggs readily adopted the suggestion that he provide an undertaking to make and file such an application in the other action and that I should deal with that on the same basis as this present application. There being no reason to decline to follow such a practical procedure, I accepted counsel's undertaking and, on condition that such an application be made and filed, directed that the suspension order dated 1 July 2009 in that action also be set aside.
This leaves the field free for any applications for renewed orders suspending enforcement of any of the three judgments to be dealt with on the merits and subject to such terms or conditions as may be appropriate either as directed by the court or with the consent of the parties. It also provides the opportunity, although not the obligation, for the parties to apply for any further order suspending enforcement of any of the judgments to the Court of Appeal. That would have the advantage of the applications being heard and determined by the decision of the court seized of the three appeals and in a position to make orders and directions having regard to its own control of those appellate proceedings.