JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: PATTERSON -v- HUMFREY [No 2] [2016] WASC 343
CORAM: LE MIERE J
HEARD: 19 OCTOBER 2016
DELIVERED : 28 OCTOBER 2016
FILE NO/S: COR 134 of 2013
MATTER :Skybow Holdings Pty Ltd
Section 232 and 233 of the Corporations Act
BETWEEN: CRAIG PATTERSON
First Plaintiff
LYNDA PATTERSON
Second PlaintiffRODALE NOMINEES PTY LTD
Third PlaintiffAND
BARRY HUMFREY
First DefendantMARY HUMFREY
Second DefendantKENESTA PTY LTD
Third Defendant
Catchwords:
Practice and procedure - Liberty to apply - Scope of liberty to apply - Principles relevant to liberty to apply - Whether order sought is within liberty to apply - Order made - Turns on own facts
Equity - Set off - Whether court can order debt owed by plaintiff to defendant can be set off against costs judgment owed by defendant to plaintiff - Appropriateness of order - Turns on own facts
Legislation:
Corporations Act 2001 (Cth)
Result:
Order sought by plaintiffs should be made
Category: B
Representation:
Counsel:
First Plaintiff : Mr M L Bennett & Mr D Banda
Second Plaintiff : Mr M L Bennett & Mr D Banda
Third Plaintiff : Mr M L Bennett & Mr D Banda
First Defendant : Mr C S Williams
Second Defendant : Mr C S Williams
Third Defendant : Mr C S Williams
Solicitors:
First Plaintiff : Bennett + Co
Second Plaintiff : Bennett + Co
Third Plaintiff : Bennett + Co
First Defendant : Solomon Brothers
Second Defendant : Solomon Brothers
Third Defendant : Solomon Brothers
Case(s) referred to in judgment(s):
Abigroup Ltd v Abignano [1992] FCA 567; (1992) 39 FCR 74
Australian Hardboards Ltd v Hudson Investment Group Ltd [2007] NSWCA 104; (2007) 70 NSWLR 201
Cameron v Renouf [2008] WASC 60
Corbett v Nguyen [No 2] [2012] NSWSC 673
Cristel v Cristel (1951) 2 KB 725
El‑Saeidy v NSW Land & Housing Corporation [No 8] [2014] NSWSC 191
Mainteck Services Pty Ltd v Stein Heurtey SA and Stein Heurtey Australia Pty Ltd [2013] NSWSC 1165
Patterson v Humfrey [2014] WASC 446
Wilden Pty Ltd v Green [2009] WASCA 38 (S)
Wilden Pty Ltd v Green [No 2] [2012] WASCA 34
LE MIERE J:
Summary
On 28 November 2014 I delivered reasons for judgment in which I found that the conduct of the affairs of Skybow Pty Ltd by the first defendant, Mr Humfrey, and the third defendant Kenesta Pty Ltd, was oppressive to, unfairly prejudicial to and unfairly discriminatory against the plaintiffs in their capacity as members of Skybow: Patterson v Humfrey [2014] WASC 446. I found that the court had power to make an order under Corporations Act 2001 (Cth) and that the appropriate relief was that either the plaintiffs or the defendants buy out the shares held by the other in Skybow. I determined that it was appropriate that the defendants acquire the plaintiffs' shares rather than the plaintiffs acquire the defendants' shares and that if the defendants fail…
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- AGLC
- Patterson v Humfrey [No 2] [2016] WASC 343
- Case
- [2016] WASC 343
- Decision Date
CaseChat Overview and Summary
The court examined the principles relevant to the liberty to apply and considered whether the order sought by the plaintiff fell within the court's discretion. It noted that the scope of the court's power to order a set-off is determined by the specific facts of each case, and that the court's role is to balance the equities between the parties. In this instance, the court found that the principles of equity supported the notion of a set-off where it would be just and equitable to do so, and that the court had the discretion to make such an order. The court concluded that, given the particular facts and circumstances, it was appropriate to order the set-off of the debts between the parties.
The court's decision was grounded in the equitable principle that allows for a set-off of mutual debts, provided it is just and fair to do so. The court found that the equities between the parties were balanced, and that ordering a set-off would not prejudice either party. As a result, the court granted the plaintiff's application to set off the debts, leading to the final orders that the debt owed by Patterson to Humfrey was set off against the costs judgment owed by Humfrey to Patterson.
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
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