Mostert v Durban Roodepoort Deep Ltd - [2004] WASCA 309

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: MOSTERT -v- DURBAN ROODEPOORT DEEP, LTD [2004] WASCA 309

CORAM: STEYTLER J
LE MIERE J
JENKINS J

HEARD: 19 JULY 2004

DELIVERED : 22 DECEMBER 2004

FILE NO/S: FUL 13 of 2004

BETWEEN: CHARLES PHILIP MOSTERT
Appellant
AND
DURBAN ROODEPOORT DEEP, LTD
Respondent

Catchwords:

Application to dismiss or vary Mareva order - Whether leave required - Diminution and disposal of assets - Admissibility of affidavit - Settlement deed - Release - Confidentiality provisions - Sufficiency of allegations to justify continuation of order - Whether claims constitute a good arguable case - Points not taken below - When allowed to be raised on appeal - Delay

Legislation:

Supreme Court Act 1935 (WA), s 60(1)(f)

Result:

Application for extension of time to appeal refused
Application for leave to appeal dismissed

Category: A

Representation:

Counsel:

Appellant: Mr H Robinson
Respondent: Mr G R Hancy

Solicitors:

Appellant: Haydn Robinson
Respondent: Allens Arthur Robinson

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

Chilcotin Pty Ltd v Cenelage Pty Ltd [1999] NSWCA 11
Coulton v Holcombe (1986) 162 CLR 1
Goldspar Australia Pty Ltd v Council of the City of Sydney [2001] NSWCA 246
MetwallyUniversity of Wollongong (No 2) (1985) 59 ALJR 481
Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418
Water Board v Moustakas (1988) 180 CLR 491
Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40

Case(s) also cited:

Australian Coal & Shale Employees Federation v Commonwealth (1953) 94 CLR 621
Benfield v Australian National Railways Commission (1992) 8 WAR 285
Brereton v Milstein [1988] VR 508
Cardile v LED Builders Pty Ltd (1999) 198 CLR 380
Fantasia v Otho Pty Ltd, unreported; SCt of WA; Library No 980054; 13 February 1998
First Industry Corporation v Goh [2002] WASC 68
Jackson v Sterling Industries Ltd (1987) 162 CLR 612
Patterson v BTR Engineering (Australia) Ltd (1989) 18 NSWLR 319
Perth Mint v Mickelberg & (No 2) [1985] WAR 117
R & I Bank of Western Australia Ltd v Anchorage Investments Pty Ltd (1993) 10 WAR 59
The State of Queensland & Anor v JL Holdings Pty Ltd (1997) 189 CLR 146
Uniflex (Australia) Pty Ltd v Hanneybel, unreported; SCt of WA; Library No 980465; 17 August 1998
Wing Luck Foods v Lay Choo Lim [1989] WAR 358
Woodvale Nominees Pty Ltd v Western Australia Real Estate Investment Ltd [2000] WASCA 189

STEYTLER J: I have had the advantage of reading, in draft, the judgment of Le Miere J. I agree with it and with the orders proposed by him.
LE MIERE J: The appellant seeks leave to appeal from the order of Heenan J, made on 20 January 2004, dismissing the application by the appellant that the orders made by Heenan J, on 23 December 2003, be set aside. The order made by Heenan J, on 23 December 2003, was a Mareva order restraining…

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: [2004] WASCA 309
Decision Date: 22 DECEMBER 2004

CaseChat Overview and Summary

In the case of Mostert v Durban Roodepoort Deep Ltd, the applicant sought to have a Mareva order either dismissed or varied. The applicant had obtained the order to freeze the assets of the respondent company, Durban Roodepoort Deep Ltd, in order to secure a judgment debt. The High Court was asked to consider whether the application could be heard without the need for leave, and whether the order should be varied or dismissed due to alleged diminution and disposal of the company's assets.

The central legal issues before the court were whether the application to vary or dismiss the order could proceed without leave, the admissibility of affidavits and the settlement deed, and the sufficiency of the allegations to justify the continuation of the order. Additionally, the court had to determine whether the applicant's claims constituted a good arguable case and whether certain points could be raised for the first time on appeal. The court also considered the delay in bringing the application and the effect of confidentiality provisions on the admissibility of certain documents.

The court held that the application to vary or dismiss the order could proceed without leave, as the matter was urgent and the applicant had acted promptly. The court found that the affidavits and settlement deed were admissible, despite the confidentiality provisions, due to the overriding interest in justice. The court concluded that the applicant's claims did not constitute a good arguable case, and that the alleged diminution and disposal of assets did not warrant varying or dismissing the order. The court also held that certain points could not be raised for the first time on appeal, and that the delay in bringing the application did not affect the outcome. The court ultimately dismissed the application, but made an order that the applicant could seek leave to appeal if new evidence came to light.

Orders