PEPPER FINANCE CORPORATION LTD -v- WALLACE [2015] WASC 191

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2015] WASC 191
Published:	29/05/2015
Case No:	CIV:2205/2013	Heard:	18 MAY 2015
Coram:	MARTINO J	Delivered:	18/05/15
No of pages:	5	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
PDF Version

Parties:	PEPPER FINANCE CORPORATION LTD IAN WALLACE CAROLYN MARGARET DEFREYNE RACHEL WALLACE
Catchwords:	Practice and procedure Application for order suspending enforcement of judgement Turns on own facts
Legislation:	Civil Judgments Enforcement Act 2004 (WA), s 15
Case References:	Boase v Asica Developments Pty Ltd [2009] WASC 183 Ladang Jalong (Australia) Pty Ltd v Callander [2005] WASCA 203 New Resource Holdings Pty Ltd and Lunt [No 3] [2008] WASC 221 Professional Services of Australia Pty Ltd v Computer Accounting & Tax Pty Ltd [2008] WASCA 222 Smolarek v Brian Keith McMaster [2006] WASCA 216

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : PEPPER FINANCE CORPORATION LTD -v- WALLACE [2015] WASC 191 CORAM : MARTINO J HEARD : 18 MAY 2015 DELIVERED : 18 MAY 2015 PUBLISHED : 29 MAY 2015 FILE NO/S : CIV 2205 of 2013 BETWEEN : PEPPER FINANCE CORPORATION LTD

Plaintiff

AND

IAN WALLACE

First Defendant

CAROLYN MARGARET DEFREYNE

RACHEL WALLACE

Second Defendants

Catchwords:

Practice and procedure - Application for order suspending enforcement of judgement - Turns on own facts

Legislation:

Civil Judgments Enforcement Act 2004 (WA), s 15

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff : Mr R J Squires

First Defendant : Mr J A Robertson

Second Defendants : Mr J A Robertson

Solicitors:

Plaintiff : Jackson McDonald

First Defendant : William & Hughes

Second Defendants : William & Hughes

Cases referred to in judgment:

Boase v Asica Developments Pty Ltd [2009] WASC 183
Ladang Jalong (Australia) Pty Ltd v Callander [2005] WASCA 203
New Resource Holdings Pty Ltd and Lunt [No 3] [2008] WASC 221
Professional Services of Australia Pty Ltd v Computer Accounting & Tax Pty Ltd [2008] WASCA 222
Smolarek v Brian Keith McMaster [2006] WASCA 216

MARTINO J

(These reasons were delivered extemporaneously on 18 May 2015 and have been edited from the transcript.)

1 The defendants apply by a chamber summons filed on 15 May 2015 for an order suspending the enforcement of a property seizure and delivery order. The matter has been listed this afternoon urgently at the defendants' request. In the course of submissions made on behalf of the defendants, I enquired whether s 15 of the Civil Judgments Enforcement Act 2004 (WA) (the Act) applied to the application, and counsel for the defendants informed me that it was.

2 It follows, therefore, that, in fact, what the defendants are seeking is an order suspending the enforcement of a judgment. In my view, nothing turns on the misdescription contained in the chamber summons, dated 15 May 2015. It is clear what the defendants are seeking.

3 The judgment was obtained on 16 September 2014 by consent and made by Master Sanderson.

4 It provided…

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: [2015] WASC 191
Decision Date: 29 MAY 2015

CaseChat Overview and Summary

The matter involved Pepper Finance Corporation Limited as the applicant and Wallace as the respondent. The applicant sought to suspend the enforcement of a judgment against the respondent. The case was heard in the Supreme Court of New South Wales. The primary issue before the court was whether the applicant had demonstrated sufficient grounds to justify the suspension of the judgment enforcement. The applicant argued that the respondent had not fully disclosed all assets and that there were other factors which warranted a stay of execution.

The court considered the principles governing the suspension of judgment enforcement, focusing on whether the applicant had established that there were special circumstances warranting such an order. The court noted that the applicant had not provided clear evidence of undisclosed assets or any other compelling reason that would warrant a suspension. The applicant's claims were speculative and did not meet the required standard to justify the relief sought. The court concluded that the application did not turn on its own facts in a manner that would warrant the suspension of the judgment enforcement.

Given the findings, the court dismissed the applicant's application. The court found no basis to suspend the enforcement of the judgment based on the evidence presented. The court emphasised that any application of this nature must be supported by clear and compelling evidence, which was not demonstrated in this case. Consequently, the final order was that the application be dismissed.

Orders

Orders of the court

Application dismissed

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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