Pollock v Piggott

Case [2017] WASCA 220

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   POLLOCK -v- PIGGOTT [2017] WASCA 220

CORAM:   MURPHY JA

MITCHELL JA
CHANEY J

HEARD:   7 NOVEMBER 2017

DELIVERED          :   28 NOVEMBER 2017

FILE NO/S:   CACV 126 of 2016

BETWEEN:   JAMIE KEVIN POLLOCK

First Appellant

STYLE SHOW PTY LTD
Second Appellant

AND

LEILA CLAIRE PIGGOTT
Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :MASTER SANDERSON

Citation  :POLLOCK -v- PIGGOTT [2016] WASC 398

File No  :COR 165 of 2016

Catchwords:

Practice and procedure - Interlocutory decision of master to dismiss application for pre­action discovery - Whether master erred in the exercise of his discretion - Whether substantial injustice would be suffered if the primary decision were left unreversed - Turns on its own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 26A r 4

Result:

Application for leave to appeal refused
Appeal dismissed

Category:    B

Representation:

Counsel:

First Appellant               :     Mr S Vandongen SC

Second Appellant          :     Mr S Vandongen SC

Respondent:     Mr J Slack-Smith

Solicitors:

First Appellant               :     Edwards Mac Scovell Legal

Second Appellant          :     Edwards Mac Scovell Legal

Respondent:     Dentons Australia

Case(s) referred to in judgment(s):

Pollock v Piggott [2016] WASC 398

Alexander v Perpetual Trustees WA Ltd [2004] HCA 7; (2004) 216 CLR 109

Dodds v Kennedy [2011] WASCA 32

Herdegen v Federal Commissioner of Taxation (1988) 84 ALR 271

Kelbush Pty Ltd v Australia and New Zealand Banking Group Ltd [2016] WASCA 14; (2016) 49 WAR 374

Latec Investments Ltd v Hotel Terrigal Pty Ltd (in liq) [1965] HCA 17; (1965) 113 CLR 265

Pendlebury v The Colonial Mutual Life Assurance Society Ltd [1912] HCA 9; (1912) 13 CLR 676

Permanent Mortgages Pty Ltd v Vandenbergh [2010] WASC 10; (2010) 41 WAR 353

The English Scottish and Australian Bank Ltd v Phillips [1937] HCA 6; (1937) 57 CLR 302

  1. JUDGMENT OF THE COURT:    This is an appeal against Master Sanderson's decision in Pollock v Piggott[1] (primary decision).  That decision concerned an application by the appellants for pre-action discovery against the respondent (Ms Piggott).  Master Sanderson dismissed the application.  Leave to appeal is required, as the primary decision is interlocutory.  For the reasons which follow, the application for leave should be refused and the appeal should be dismissed.

Background[2]

February 2013

[1] Pollock v Piggott [2016] WASC 398.

[2] The following matters are taken from the primary decision, unless otherwise indicated.

  1. In or about February 2013, the first appellant (Mr Pollock) became aware that a property in Wattle Grove (the property) was for sale by a mortgagee in possession. 

  2. Mr Pollock was familiar with the property.  He held a position with a company (Stonetraders) which held a lease over part of the property.[3]  He knew that the land adjoining it had been rezoned to allow urban residential development.  He thought that the mortgagee in possession might sell the property for around $2.5 million,…

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AGLC
Pollock v Piggott [2017] WASCA 220
Case
[2017] WASCA 220
Decision Date

CaseChat Overview and Summary

The appeal in Pollock v Piggott concerns the interlocutory decision of Master Sanderson to dismiss an application for pre-action discovery by the appellants, Mr Pollock and others, against the respondent, Ms Piggott. The dispute revolves around an agreement between Mr Pollock and Mr Lewis Piggott, Ms Piggott’s brother, to purchase a property in Wattle Grove jointly in equal shares. The appellants sought pre-action discovery from Ms Piggott to understand her involvement in the property transaction and the relationship between the siblings. The legal issues before the court were whether the master erred in exercising his discretion in dismissing the application and whether substantial injustice would result if the primary decision were left unreversed.

The court considered the requirements for leave to appeal an interlocutory decision, which includes demonstrating that the decision involved an error of law and that substantial injustice would occur if the decision were not reversed. The court found that the primary decision was correct and that there was no basis for concluding that the master had erred in exercising his discretion. The appellants' argument that the primary decision should be reviewed due to the involvement of Ms Piggott in the property transaction was deemed insufficient, as it did not establish that the master had made an error of law. The court emphasised that the decision to grant or refuse pre-action discovery was within the master's discretion, and there was no evidence to suggest that the master had exercised this discretion improperly.

Given the findings, the court refused the application for leave to appeal and dismissed the appeal. The court held that the primary decision was sound and that there was no substantial injustice warranting the overturning of the master's decision. The court further noted that the matter was at a preliminary stage, and the appellants had not demonstrated any significant prejudice resulting from the primary decision. Therefore, the appeal was properly dismissed, and the interlocutory decision of the master remained undisturbed.

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

JUDGMENT OF THE COURT: This is an appeal against Master Sanderson's decision in Pollock v Piggott[1] (primary decision). That decision concerned an application by the appellants for pre-action discovery against the respondent (Ms Piggott). Master Sanderson dismissed the application. Leave to appeal is required, as the primary decision is interlocutory. For the reasons which follow, the application for leave should be refused and the appeal should be dismissed. In or about February 2013, the first appellant (Mr Pollock) became aware that a property in Wattle Grove (the property) was for sale by a mortgagee in possession. Mr Pollock was familiar with the property. He held a position with a company (Stonetraders) which held a lease over part of the property.[3] He knew that the land adjoining it had been rezoned to allow urban residential development. He thought that the mortgagee in possession might sell the property for around $2.5 million, and suspected that the property could attract similar rezoning which could result in a significant increase in its value. The property also had good rental return prospects, which Mr Pollock thought could wholly cover repayments on borrowings used to purchase the property.[4] [3] Mr Pollock's affidavit sworn 15 March 2016, par 8; GB 20.[4] Primary decision [3] - [4]. Mr Pollock wanted to purchase the property, but had insufficient funds to do so. He approached Mr Lewis Piggott to be a co‑investor. Mr Pollock and Lewis Piggott met at the property on 20 February 2013. Also present at the meeting were Ms Piggott and Mr Ben Piggott. Lewis Piggott, Ben Piggott and Ms Piggott are siblings.[5] [5] Primary decision [5] - [6]. At the meeting on 20 February 2013, Mr Pollock explained to Lewis, Ben and Ms Piggott why he thought the property was a good investment. A speaker telephone call was made to the seller, and the seller told Mr Pollock the terms on which he would be prepared to sell the property. Mr Pollock and Lewis Piggott agreed to the seller's terms at the meeting, and resolved to purchase the property jointly in equal shares.[6] The price was to be $2.65 million and the deposit was to be $1.2 million.[7] They agreed on the material terms on which the purchase would be made, including that:[8] (a)Mr Pollock and Lewis Piggott would each pay half the deposit (ie, $600,000 each);(b)a shelf company held by Lewis Piggott, namely ACN 159 520 000 Pty Ltd (the Company), would be used as the notional purchasing entity, in which Mr Pollock (or his nominee) would take both a shareholding and position as a director; and (c)a formal unit trust would be drawn to reflect the respective interests. [6] Primary decision [7].[7] Mr Pollock's affidavit sworn 15 March 2016, pars 11, 12; GB 21.[8] Primary decision [7]. Lewis Piggott was the sole director of the Company.[9][9] Mr Pollock's affidavit sworn 15 March 2016, par 6; GB 20. Also, according to Mr Pollock, at the meeting on 20 February 2013:[10] (a)Lewis Piggott said that he was confident that he could obtain finance for the balance of the purchase price on commercial terms;(b)Mr Pollock told Lewis Piggott that if Lewis Piggott was unable to obtain commercial third party finance for the purchase, then Mr Pollock was agreeable for him (Lewis Piggott) to finance the purchase; and (c)in that event, Mr Pollock would pay interest at the rate of 15% on his share.[10] Mr Pollock's affidavit sworn 15 March 2016, pars 12(a) and (b)(ii); GB 21.

Ratio Decidendi

Legal Principle Established

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