Pave Wealth Services Pty Ltd v Jones - [2023] WASC 175

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   PAVE WEALTH SERVICES PTY LTD -v- JONES [2023] WASC 175
CORAM:   MASTER SANDERSON
HEARD:   18 APRIL 2023
DELIVERED          :   24 MAY 2023
PUBLISHED           :   24 MAY 2023
FILE NO/S:   CIV 2283 of 2022
BETWEEN:   PAVE WEALTH SERVICES PTY LTD
Plaintiff
AND
DANIELLE JONES as executrix of the estate of MICHAEL FREDERICK JONES
First Defendant
DANIELLE JONES-BALLARD
Second Defendant

Catchwords:

Remedies - Equitable doctrine of tracing as embodied in s 65 of Trustee Act - Turns on own facts

Legislation:

Restraint of Debtors Act 1984 (WA)
Trustees Act 1962 (WA)

Result:

Plaintiff's right to claim costs upheld

Category: B

Representation:

Counsel:

Plaintiff	:	GJ Douglas & T Watson
First Defendant	:	JP Cook
Second Defendant	:	JP Cook

Solicitors:

Plaintiff	:	Douglas Cheveralls Lawyers
First Defendant	:	Mendelawitz Morton Commercial Lawyers
Second Defendant	:	Mendelawitz Morton Commercial Lawyers

Cases referred to in decision:

Blair v Curran (1939) 62 CLR 464
Gibbs v Kinna [1998] VSCA 52; [1999] 2 VR 19
Lordsvale Finance Plc v Bank of Zambia [1996] QB 752
O'Farrell v Palicave Pty Ltd [2009] FCAFC 64

MASTER SANDERSON:

There are some cases which seem to take on a life of their own. Often these cases at first instance appear relatively straightforward - the type of case that might be expected to settle at mediation. But for some reason no resolution is possible and even a trial, an appeal and enforcement proceedings do not bring the action to an end. This is such a case. Perhaps this decision will terminate the proceedings, although that is by no means certain. The point at issue is not straightforward.
The relevant background facts are set out in an affidavit of Paul Antony Stojanovic sworn 24 November 2022. In about 2009, Mr Stojanovic started discussions with Michael Frederick Jones about purchasing a financial planning business. That business was Prosperity Partners. In late 2009, the plaintiff company entered into an agreement with Mr Jones to buy Prosperity Partners. (At the time the agreement was entered into, the plaintiff rejoiced in the name Headless Canary Pty Ltd. It changed its name in 2011.) The sale of the business settled in April 2010 and thereafter Mr Stojanovic realised the value of the business had been misrepresented by Mr Jones and the plaintiff had paid more than was reasonable.
Mr Jones passed away in May 2013. He left a last will and testament dated 13 February 2012 appointing his wife, the second defendant, the executor of his estate. The will provided for two bequests to each of Mr Jones' daughters with the rest and residue of the estate passing to the second defendant. As at the date of his death, Mr Jones owned a property in Dalkeith. On 3 October 2013, the property was transferred to the first defendant by way of a transmission application consistent with the terms of the will.
In September 2014, the plaintiff's former solicitors notified the first defendant of the plaintiff's…

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: [2023] WASC 175
Decision Date

CaseChat Overview and Summary

Pave Wealth Services Pty Ltd v Jones was a complex case heard in the Supreme Court of Western Australia, involving the enforcement of a judgment against the estate of a deceased individual. The plaintiff, Pave Wealth Services Pty Ltd, sought to enforce a judgment against Danielle Jones as executrix of the estate of Michael Frederick Jones. The central issue was whether the plaintiff could rely on the equitable doctrine of tracing as embodied in s 65 of the Trustees Act 1962 (WA) to enforce the judgment against the estate. The court had to determine if the plaintiff was entitled to claim the judgment sum, interest, and costs against the estate after the assets had been distributed.

The court found that the plaintiff was indeed entitled to rely on s 65 of the Trustees Act to enforce the judgment. However, a dispute arose over the form of the orders, specifically whether the plaintiff could claim costs that had not been assessed at the time the s 65 application was made. The defendants argued that the plaintiff was precluded from claiming costs by the doctrines of res judicata and Anshun estoppel. The court considered the authorities on these doctrines and found that the plaintiff's claim for costs was not barred. The court concluded that the plaintiff could claim the costs as part of the overall outcome of the proceedings, as the defendants always knew they would be liable for costs.

The court ordered that Danielle Jones, as executrix of the estate, pay Pave Wealth Services Pty Ltd the judgment sum plus interest and costs, as determined by the Court of Appeal. This decision ensures that the plaintiff can enforce the judgment against the estate, while also addressing the issue of costs. The outcome allows the plaintiff to recover the full amount owed, including costs, thereby providing a just resolution to the matter.

Orders