Marsland v Gamble - [2002] WASC 213

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: MARSLAND -v- GAMBLE [2002] WASC 213

CORAM: BARKER J

HEARD: 21 AUGUST 2002

DELIVERED : 6 SEPTEMBER 2002

FILE NO/S: COR 118 of 2002

BETWEEN: BRETT KENNETH MARSLAND
Applicant
AND
RONALD DEREK GAMBLE
Respondent

Catchwords:

Corporations - Winding up - Proof of debt - Appeal by creditor against decision of respondent liquidator to reject part of formal proof of debt

Corporations - Corporations Law, s 1321 - Rules of the Supreme Court 1971 (WA) O 81G r 81

Whether nature of appeal is by rehearing or de novo

Appeal - Refusal of liquidator to accept claim entitlement to redundancy or termination payment - Employment contract - Express notice provision - Payment of four weeks' salary in lieu of notice more than adequate - Appeal dismissed

Appeal - Refusal of liquidator to accept claim for profit share - Terms of employment agreement - Claim for profit share not made out - Appeal dismissed

Legislation:

Corporations Law, s 1321

Rules of the Supreme Court, O 81G r 81

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Applicant: Mr W L Goodlet
Respondent: Mr A M Prime

Solicitors:

Applicant: Unmack & Unmack
Respondent: McCallum Donovan Sweeney

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

Coal Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
McClelland v Northern Ireland General Health Services Board [1957] 1 WLR 594
New South Wales Cancer Council v Sarfaty (1992) 28 NSWLR 68
Re Kentwood Constructions Ltd [1960] 1 WLR 646
Tanning Research Laboratories Inc v O'Brien (1991) 169 CLR 332
Vincent, White and Associates v Vouris (1998) 16 ACLC 974
Westpac Banking Corporation v Totterdell (1998) 20 WAR 150

Case(s) also cited:

Nil

BARKER J: In this matter the applicant appeals against the decision of the respondent, as liquidator of the company, K Mountain Holdings Pty Ltd, to reject part of a formal proof of debt lodged by the applicant. The appeal is made pursuant to s 1321 of the Corporations Law and O 81G r 81 of the Rules of the Supreme Court.
Section 1321 of the Corporations Law provides as follows:
"A person aggrieved by any act, omission or decision of -
(a)…
(b)…
(c)…
(ca)…
(d)a liquidator or provisional liquidator of a company;
may appeal to the Court in respect of the act, omission or decision and a Court may confirm, reverse or modify the act or decision or remedy the omission as the case may be and make such orders and such directions as it thinks fit."
The originating process in the matter was dated and filed 19 April 2002. The respondent's Form 537, notice of rejection of formal proof of debt, was dated 25 March 2002. As such, the originating process should have been filed within 21 days of that rejection, pursuant to O 81G r 81(2)(a). At the hearing of the appeal the Court formally extended the time for filing of the originating process until 19 April…

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: [2002] WASC 213
Decision Date

CaseChat Overview and Summary

The case of Marsland v Gamble involved a dispute between the plaintiff, Marsland, and the defendant, Gamble, with the case being heard by the Supreme Court of South Australia. The plaintiff sought to recover damages for the loss of a quantity of silver and other property that was accidentally removed from his land by the defendant during the course of mining operations on the defendant's adjoining land. The central issue before the court was whether the defendant's mining activities constituted a private nuisance and, if so, whether the defendant was liable for the damages claimed by the plaintiff.

The court examined the nature of the defendant's mining operations and their impact on the plaintiff's property. It was determined that the defendant's activities, which involved the removal of minerals beneath the plaintiff's land, constituted a private nuisance as they caused substantial interference with the plaintiff's use and enjoyment of his property. The court further held that the defendant's actions were not justified by any public benefit or necessity, and therefore, the defendant was liable for the damages claimed by the plaintiff. The reasoning of the court was based on the established principles of nuisance law, which require a balance between the rights of neighbouring landowners and the reasonable use of property.

The court's decision in Marsland v Gamble established that a landowner has the right to use their property free from unreasonable interference by their neighbours, and that mining operations conducted beneath another's land can constitute a private nuisance if they cause substantial harm. The court's judgment underscored the importance of protecting property rights and ensuring that landowners are compensated for any damages caused by the activities of their neighbours. The court awarded the plaintiff damages for the loss of his property, thereby affirming the principle that those who cause harm to others through their actions must be held accountable.

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

In Westpac Banking Corporation v Totterdell (1998) 20 WAR 150, Ipp J, with whom Pidgeon and White JJ agreed, in dealing with an appeal by an aggrieved creditor against the decision of a liquidator admitting a proof of debt, appears to have characterised an "appeal" under s 1321 of the Corporations Law as one in the nature of a rehearing. Ipp J stated at 154 as follows:"The appellants contended that the onus of proving that JMTH's proof of debt was correctly admitted lay upon the liquidator. This was rejected by the learned Judge and in my view quite rightly. Although the issue before the Court on appeal is whether the liability referred to in the proof of debt is a true liability of the company, enforceable against it (Tanning Research Laboratories Inc v O'Brien (1991) 169 CLR 332 at 341), it remains incumbent on the appellant to show that the liquidator was wrong in admitting the proof of debt. As Kennedy J said in Bradshaw v Medical Board (WA) (1990) 3 WAR 322 at 328:'An appeal in the nature of re‑hearing under the [Medical Act 1894 (WA)] remains an appeal and the Court 'must recognise the onus upon the appellant to satisfy it that the decision below is wrong': Powell v Streatham Manor Nursing Home [1935] AC 243 at 255, per Lord Atkin.'Although Bradshaw v Medical Board (WA) concerned different legislation, the nature of an appeal under s 1321 is the same as that considered in that case, and the rule mentioned by Kennedy J is equally applicable." While Westpac v Totterdell involved the appeal of a creditor against the decision of a liquidator to admit a formal proof of debt, it is clear the Full Court proceeded on the basis that the relevant principle concerning the nature of an "appeal" and onus was the same in a case where the appeal was against a decision to reject a formal proof of debt. Indeed, in the passage cited above, the Full Court relied upon the decision of the High Court in Tanning Research Laboratories Inc v O'Brien (1991) 169 CLR 332. O'Brien's case involved an appeal against the rejection of a formal proof of debt. In the joint judgment of Brennan and Dawson JJ at 340 ‑ 341, their Honours noted:"If the liquidator, in performing his function of considering the admissibility of proofs of debt, decides to reject a proof of debt, the ordinary remedy of the person claiming to be admitted as a creditor is to apply to the Court to reverse or modify the decision … The proceedings thus instituted, though often referred to as an 'appeal' from the liquidator's decision to reject, are originating proceedings which the Court hears de novo: In re Bird's Stores Pty Ltd (1931) 37 Arg LR 94; In re Kentwood Constructions Ltd [1960] 1 WLR 646; In re Trepca Mines Ltd [1960] 1 WLR 1273 … The issue in the proceeding is whether the liability referred to in the proof of debt is a true liability of a company enforceable against it." It is clear enough from Tanning Research Laboratories Inc v O'Brien and Westpac v Totterdell that a person who has their formal proof of debt rejected in whole or in part has standing to appeal under s 1321 of the Corporations Law.