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Norilya Minerals Pty Ltd v Easterday

Norilya Minerals Pty Ltd v Easterday

Case [2009] WASC 191 28 July 2009

Civil Litigation & Procedure

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: NORILYA MINERALS PTY LTD -v- EASTERDAY [2009] WASC 191

CORAM: LE MIERE J

HEARD: 16 JANUARY 2009

DELIVERED : 28 JULY 2009

FILE NO/S: CIV 2364 of 2007

BETWEEN: NORILYA MINERALS PTY LTD
Plaintiff
AND
CLARK ERVIN EASTERDAY
LEONARD LANCELOT IRELAND
First Defendants
KAYLENE HOLDINGS PTY LTD (ACN 009 462 195)
Second Defendant
BRENDA ANNE EASTERDAY
Third Defendant
WEBGO PTY LTD (ACN 009 022 057)
Fourth Defendant
FIM PTY LTD (ACN 008 964 609)
Fifth Defendant
PAUL CHRISTOPHER IRELAND
Sixth Defendant

FILE NO/S :CIV 2232 of 1990

BETWEEN :NORILYA MINERALS PTY LTD
Plaintiff
AND
DEAN EDWARD IRELAND
CLARK ERVIN EASTERDAY
LEONARD LANCELOT IRELAND
Defendants

Catchwords:

Practice and procedure - Application for consolidation of actions - Whether convenient to consolidate the actions - Whether a party would be prejudiced by consolidation - Turns on own facts

Practice and procedure - Application to amend statement of claim - Whether amendments to statement of claim challenge orders made by the Court of Criminal Appeal - Whether court has power to make declaration - Whether court should exercise its discretion to grant declaration - Turns on own facts

Practice and procedure - Application to join executor as a defendant - Turns on own facts

Practice and procedure - Application for further security for costs - Whether consent orders may be varied by the court - Turns on own facts

Practice and procedure - Application for stay of the proceedings pending compliance with the orders of the Court of Criminal Appeal - Turns on own facts

Practice and procedure - Application that the plaintiff not be heard pending compliance with the orders of the Court of Criminal Appeal - Turns on own facts

Practice and procedure - Application for action to be struck out - Whether an abuse of process - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 18 r 4, O 83 r 1

Result:

Defendants' applications that the plaintiff not be heard or actions be stayed or struck out are dismissed
Plaintiff's application to join executor as a defendant in CIV 2232 of 1990 granted
Plaintiff's application to amend statement of claim in CIV 2232 of 1990 granted
Plaintiff's application to consolidate CIV 2232 of 1990 and CIV 2364 of 2007 granted
Defendants' application for further security for costs in CIV 2232 of 1990 dismissed
Defendants' application for further security for costs in CIV 2364 of 2007 granted

Category: B

Representation:

CIV 2364 of 2007

Counsel:

Plaintiff:     Mr S M Davies
First Defendants            :     Mr M Ryan
Second Defendant         :     Mr M Ryan
Third Defendant            :     Mr M Ryan
Fourth Defendant           :     Mr M Ryan
Fifth Defendant              :     Mr M Ryan
Sixth Defendant             :     Mr M Ryan

Solicitors:

Plaintiff:     Deacons
First Defendants            :     Bostock & Ryan
Second Defendant         :     Bostock & Ryan
Third Defendant            :     Bostock & Ryan
Fourth Defendant           :     Bostock & Ryan
Fifth Defendant              :     Bostock & Ryan
Sixth Defendant             :     Bostock &…

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.

Continue reading Norilya Minerals Pty Ltd v Easterday

Details

AGLC: Norilya Minerals Pty Ltd v Easterday [2009] WASC 191
Case: [2009] WASC 191
Decision Date: 28 JULY 2009

CaseChat Overview and Summary

Norilya Minerals Pty Ltd commenced proceedings against Easterday, and subsequently sought to consolidate multiple related actions, amend its statement of claim, join an executor as a defendant, secure further costs, stay the proceedings, and strike out the action. The applications were contested by Easterday, and the court considered whether the applications were appropriate, whether the court had the power to grant them, and whether the court should exercise its discretion in favour of the plaintiff. The court found that the applications turned on the facts of the case, and that the court did not have the power to grant certain orders, nor should it exercise its discretion in favour of the plaintiff for others.
The court found that consolidation of the actions was not convenient, and that Easterday would be prejudiced if the actions were consolidated. The court found that the proposed amendments to the statement of claim challenged the orders made by the Court of Criminal Appeal, and that the court did not have the power to make a declaration. The court found that the court did not have the power to vary consent orders, nor to join the executor as a defendant. The court found that the plaintiff was not entitled to a stay of the proceedings, nor to an order that the plaintiff not be heard pending compliance with the orders of the Court of Criminal Appeal. The court found that there was no abuse of process, and that the plaintiff was not entitled to have the action struck out.
The court dismissed all of the plaintiff’s applications and ordered the plaintiff to pay costs.

Orders