Nyoni v Hee
[2014] WASCA 84
•17 APRIL 2014
NYONI -v- HEE [2014] WASCA 84
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASCA 84 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:23/2014 | 4 APRIL 2014 | |
| Coram: | PULLIN JA NEWNES JA | 17/04/14 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | EMSON NYONI CHEE KOON HEE CK HEE PTY LTD S C TAN PTY LTD KRUTI PTY LTD REGISTRAR OF TITLES COMMISSIONER OF TITLES |
Catchwords: | Appeal Whether any of the grounds of appeal have any reasonable prospect of succeeding |
Legislation: | Rules of the Supreme Court 1971 (WA), O 14 r 2(1) Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)(i) Vexatious Proceedings Restriction Act 2002 (WA) |
Case References: | Eastland Technology Australia Pty Ltd v Whisson (2003) 28 WAR 308 Hee v Nyoni [2014] WASC 44 Norton v Angus (1926) 38 CLR 523 Nyoni v Chee Koon Hee [No 4] [2013] FCA 948 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : NYONI -v- HEE [2014] WASCA 84 CORAM : PULLIN JA
- NEWNES JA
- Appellant
AND
CHEE KOON HEE
First Respondent
CK HEE PTY LTD
Second Respondent
S C TAN PTY LTD
Third Respondent
KRUTI PTY LTD
Fourth Respondent
REGISTRAR OF TITLES
Fifth Respondent
COMMISSIONER OF TITLES
Sixth Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : ACTING MASTER GETHING
Citation : HEE -v- NYONI [2014] WASC 44
File No : CIV 2468 of 2013
Catchwords:
Appeal - Whether any of the grounds of appeal have any reasonable prospect of succeeding
Legislation:
Rules of the Supreme Court 1971 (WA), O 14 r 2(1)
Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)(i)
Vexatious Proceedings Restriction Act 2002 (WA)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
First Respondent : Mr A J Arristei
Second Respondent : Mr A J Arristei
Third Respondent : Mr A J Arristei
Fourth Respondent : Mr A J Arristei
Fifth Respondent : No appearance
Sixth Respondent : No appearance
Solicitors:
Appellant : In person
First Respondent : Irdi Legal
Second Respondent : Irdi Legal
Third Respondent : Irdi Legal
Fourth Respondent : Irdi Legal
Fifth Respondent : No appearance
Sixth Respondent : No appearance
Case(s) referred to in judgment(s):
Eastland Technology Australia Pty Ltd v Whisson (2003) 28 WAR 308
Hee v Nyoni [2014] WASC 44
Norton v Angus (1926) 38 CLR 523
Nyoni v Chee Koon Hee [No 4] [2013] FCA 948
1 REASONS OF THE COURT: A registrar's notice to attend required the appellant to show cause why the appeal should not be dismissed on the basis that none of the appellant's grounds of appeal had any reasonable prospect of succeeding. The appellant's application for a stay of orders made by Acting Master Gething on 21 February 2014 is also listed for hearing.
2 The background to the matter emerges from the acting master's reasons for that judgment: see Hee v Nyoni [2014] WASC 44. A short summary of the dispute is as follows.
3 Mr Nyoni is the registered proprietor of land in Kellerberrin. On the land stands a building from which Mr Nyoni conducts a pharmacy business.
4 In March 2013, the respondents offered to buy the land and the business. Mr Nyoni accepted the offer and this resulted in two contracts in writing, one relating to the sale of the pharmacy business and the other relating to the land. Mr Nyoni signed both documents. The respondents paid $10,000 deposit under the business sale agreement and $5,000 under the land sale agreement.
5 On 3 May 2013, Mr Nyoni served a purported notice of rescission on Mr Hee. On 16 May 2013, Mr Hee instructed solicitors to write to Mr Nyoni advising him that his purported rescission was not accepted and that the respondents elected to affirm the two agreements and said they would commence proceedings to enforce the contracts.
6 The respondents issued a writ seeking specific performance and applied for summary judgment. Mr Nyoni sought to resist summary judgment on the basis that the two agreements were entered into as a result of misleading and unconscionable conduct, and that there were related Federal Court proceedings which was the more appropriate vehicle for the determination of the dispute.
7 The acting master considered the affidavit material and recorded the fact that there was undisputed evidence that Mr Hee had commenced the process of obtaining approval from Medicare for a change in the ownership of the Kellerberrin pharmacy; Mr Nyoni had not returned the two deposit amounts; the purchasers had made arrangements for settlement to occur on 22 May 2013; the purchasers had sufficient funds to effect settlement of the two agreements on 22 May 2013; Mr Nyoni had not provided the signed transfer of land document prior to settlement to enable the purchasers to pay the stamp duty; and settlement had not occurred on 22 May 2013. Mr Hee deposed that he believed that Mr Nyoni had no defence to the action as required by O 14 r 2(1) of the Rules of the Supreme Court 1971 (WA).
8 The acting master granted summary judgment for the reasons expressed in Hee. As to the alleged misleading and deceptive conduct, the acting master observed that it was not possible to identify what conduct of the plaintiffs Mr Nyoni said was misleading or deceptive or likely to mislead or deceive. The acting master said that from Mr Nyoni's oral submissions, Mr Nyoni may have been alleging that the misleading conduct was that the true purchaser of the land and business was the Shire of Kellerberrin. The acting master said that there was no evidence whatsoever in the material to support the allegation.
9 As to the alleged unconscionable conduct, the acting master concluded that there was no material placed before the court which would give rise to any arguable defence. There were no facts suggesting Mr Nyoni was under a special disadvantage. Both Mr Nyoni and Mr Hee were pharmacists and business proprietors. There was no evidence that Mr Nyoni was under any commercial pressure or constraints at the time of entering into the agreements. The acting master concluded that there was no evidence suggesting that Mr Nyoni was anything other than perfectly free to either sell his business or not and noted that it was Mr Nyoni who first approached Mr Hee to discuss a sale. The claim of unconscionable conduct was therefore without merit.
10 Finally, the acting master considered the submission that the proceedings in the Federal Court constituted some other reason for there to be a trial of the action. The first of the Federal Court proceedings referred to by Mr Nyoni was WAD 316 of 2010. Mr Nyoni is the applicant in those proceedings. The Shire of Kellerberrin is the first respondent. There are other respondents, but not any of the parties to the present action. It therefore appeared to have no relevance.
11 The second application in the Federal Court was WAD 154 of 2013, which commenced on 20 May 2013. Mr Nyoni was the applicant. There were at least seven other respondents, some being the respondents in this appeal. In those proceedings, Mr Nyoni sought orders setting aside the land sale agreement and the business sale agreement, and sought an order denying the respondents the remedy of specific performance. The respondents in those proceedings applied for summary dismissal of the action. That application was heard by Gilmour J on 9 August 2013. Gilmour J made orders dismissing the action: see Nyoni v Chee Koon Hee [No 4] [2013] FCA 948. Gilmour J observed that Mr Nyoni 'has put the respondents to the expense of defending claims which are either hopeless or devoid of any reasonable prospects of success'. Having dismissed the claim, indemnity costs were ordered against Mr Nyoni.
12 The third application in the Federal Court is WAD 382 of 2013. It is an appeal from the decision of Gilmour J and an application for leave to commence the appeal was listed and heard by a Federal Court judge, but no decision has yet been made.
13 The acting master took into account that Mr Nyoni was not represented. The judgment entered by the acting master on 21 February 2014 provided for specific performance of the two contracts, and provided for the detailed steps to be taken so that settlement and transfer of the properties could be effected.
14 On 20 March 2014, further orders were made by the acting master in effect settling the content of the settlement statement and authorising an officer of the court to execute necessary documents to bring about a transfer of title if Mr Nyoni failed or refused to sign the documents.
The appeal
15 Mr Nyoni commenced this appeal on 14 March 2014. On 19 March 2014, he filed an application seeking a stay of the orders of Acting Master Gething dated 21 February 2014, pending the determination of this appeal.
The principles governing an application for a stay pending the hearing of the appeal
16 The principles governing an application for a stay are well known. They are set out in Eastland Technology Australia Pty Ltd v Whisson (2003) 28 WAR 308 [9]. The successful litigant will ordinarily be entitled to enforce a judgment pending the determination of any appeal; it is for the applicant for a stay to move the court to a favourable exercise of its discretion and the court will not grant a stay unless special circumstances are shown justifying departure from the ordinary rule. A central issue will be whether the stay is perceived to be necessary to preserve the subject matter or integrity of the litigation, or where refusal of a stay could create practical difficulties in respect of the relief which may be granted on appeal, or where the right of appeal will be rendered nugatory. If that can be demonstrated, the stay will generally still be refused unless it can be established that the appeal has ultimately reasonable prospects of success. Finally, the balance of convenience has to be considered.
17 Because on the stay application a relevant question is whether the appeal has reasonable prospects of success, it is necessary to examine the grounds of appeal. If the grounds have no reasonable prospects of success, then this court has power under r 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules 2005 (WA) to dismiss the appeal.
18 When Mr Nyoni filed his application for a stay, he provided no grounds of appeal. Registry wrote to Mr Nyoni indicating that the application would not be heard until grounds of appeal or proposed grounds of appeal were filed. On 27 March 2014, grounds of appeal were filed by Mr Nyoni.
19 None of the 10 grounds of appeal have any reasonable prospect of succeeding for the following reasons.
20 The grounds of appeal fall into five categories.
21 The first category contains grounds which are merely argumentative. For example, the first ground (for some unexplained reason, given the number 15.1) reads:
The Acting Master erred in both law and fact by awarding specific performance to the Respondents without any legislation or lawful basis.
- Grounds 15.3 and 15.8 are in this category.
Grounds of that nature have no reasonable prospect of succeeding.
22 The second category contains grounds alleging that if there had been a trial, there might have been evidence not revealed in the summary judgment application. For example, the second ground, 15.2, reads:
The Acting Master erred in law and fact in awarding specific performance to [the] Respondents by summary judgment where a contest in a trial would have disclosed evidence not contested in a summary judgment [sic].
- Ground 15.7 is also in this category. The appellant did not reveal the nature of the evidence that might have been disclosed had there been a trial.
Those grounds have no reasonable prospect of succeeding.
23 The third category contains a ground (ground 15.4) alleging 'actual or apprehended bias' on the part of the acting master because he relied on uncontested affidavit evidence of one of the respondents. A ground of that sort has no reasonable prospect of succeeding.
24 The fourth category contains a ground (ground 15.5) complaining that the acting master did not examine one of the Federal Court cases relied upon. That ground cannot succeed. The acting master examined all of the Federal Court cases relied upon and correctly concluded that they did not assist the appellant.
25 The fifth category contains grounds which contend that the acting master should not have decreed specific performance. For example, ground 15.9 reads:
Enforcement of specific performance will result in extreme hardship where First Defendant [sic] [ie, the appellant], the sole breadwinner's assets and sole profession and livelihood would be wiped out with no recourse to justice [sic] where damages would have been adequate.
- Grounds 15.8 and 15.10 are also in this category. The main point raised by these three grounds is that damages would have been an adequate remedy rather than the court decreeing specific performance. Damages may be awarded in lieu of specific performance where justice cannot be done by a decree of specific performance, and where justice will be better done by giving damages in lieu: Norton v Angus (1926) 38 CLR 523, 529 (Knox CJ). The appellant did not identify any conduct on the part of the respondents which might have led the acting master to refuse to decree specific performance.
As a result, grounds 15.8, 15.9 and 15.10 have no reasonable prospect of succeeding.
26 Because none of the grounds of appeal has any reasonable prospect of succeeding, the appeal must be dismissed. In consequence, there is no need to consider the stay application.
27 From what has been observed in the arguments presented before the acting master and in this appeal, and from the observations made by Gilmour J in the Federal Court, it is clear that Mr Nyoni is prepared to pursue proceedings which are without merit and which vex other parties. There is sufficient information, therefore, to direct the principal registrar to refer these reasons for decision to the Attorney General for him to consider whether proceedings should not be brought against Mr Nyoni under the Vexatious Proceedings Restriction Act 2002 (WA).
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