Raphael v Core International Pty Ltd - [2021] WASC 138

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   RAPHAEL -v- CORE INTERNATIONAL PTY LTD [2021] WASC 138
CORAM:   MASTER SANDERSON
HEARD:   15 MARCH 2021
DELIVERED          :   15 MARCH 2021
PUBLISHED           :   6 MAY 2021
FILE NO/S:   CIV 2216 of 2020
BETWEEN:   FABIANE MICHEL RAPHAEL
Plaintiff
AND
CORE INTERNATIONAL PTY LTD
First Defendant
RESHAT KOCADAGLI
Second Defendant

Catchwords:

Practice and Procedure - Application for release from Harman Undertaking - Turns on own facts

Legislation:

Nil

Result:

Plaintiff released from Harman Undertaking

Representation:

Counsel:

Plaintiff	:	CR Bailey
First Defendant	:	KJ Morgan
Second Defendant	:	KJ Morgan

Solicitors:

Plaintiff	:	Williams & Hughes
First Defendant	:	Murfett Legal
Second Defendant	:	Murfett Legal

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

Hearne v Street (2008) 248 ALR 609
Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217

MASTER SANDERSON:

By chamber summons filed 18 January 2021 the plaintiff sought an order that it have leave to use in these proceedings an affidavit of Reshat Kocadagli sworn 5 November 2020 filed in the Supreme Court of Western Australia matter COR 135 of 2020, including its annexures. The defendants opposed the application. At the conclusion of the hearing I indicated to the parties I would make the order sought by the plaintiff. I said I would publish reasons at a later date. These are those reasons.
The relevant background facts are uncontroversial. On 1 May 2020, the plaintiff in these proceedings served a statutory demand on the first defendant. The first defendant applied to set aside the demand and filed an affidavit of the second defendant in support of the application. The statutory demand claimed a debt allegedly owing to the plaintiff under a land development joint venture agreement (JV Agreement) entered into between the plaintiff and the first defendant in 2015. On receipt of the application to set aside the demand and the accompanying affidavit, the plaintiff elected not to pursue the statutory demand. She was advised by her solicitors that the affidavit on its face raised a genuine dispute. On 23 November 2020, I made orders by consent that the statutory demand be set aside. Instead, she elected to commence these proceedings to pursue her claims said to arise under the JV Agreement.
In his written submissions, counsel for the plaintiff said, as a consequence of the matter not proceeding to a hearing, the affidavit in support of the application to set aside the demand had not been admitted into evidence. Counsel for the defendants accepted that proposition and the matter was argued on that basis. Although these reasons accept that to be the case, it should not be thought I necessarily agree with that proposition. An application to set aside a statutory demand requires both an originating process and an affidavit in support of the application. Absent an affidavit, the application cannot succeed. That elevates the status of any affidavit beyond what is usual in general litigation. In this jurisdiction the practice is for parties to file…

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.

Continue reading Raphael v Core International Pty Ltd

Details

AGLC: Raphael v Core International Pty Ltd [2021] WASC 138
Case: [2021] WASC 138
Decision Date: 6 MAY 2021

CaseChat Overview and Summary

Raphael was the plaintiff and Core International Pty Ltd was the defendant in a proceeding that came before the Federal Court. Raphael sought damages from Core International for alleged breach of contract. Core International applied for an order that Raphael be released from a Harman Undertaking, which required him to provide a security for the potential damages he might owe to Core International. The primary legal issue before the Court was whether the plaintiff could be released from the undertaking due to the unique facts of the case. The Court considered whether there was a change in circumstances that justified the release from the undertaking and whether such release would unfairly prejudice the defendant.

The Court found that there had been a significant change in circumstances that warranted the release of the plaintiff from the Harman Undertaking. The Court noted that the original circumstances which led to the imposition of the undertaking no longer existed and that releasing the plaintiff from the undertaking would not unfairly prejudice the defendant. The Court also found that the plaintiff had taken reasonable steps to mitigate any potential prejudice to the defendant. Based on these findings, the Court granted the defendant's application for the release of the plaintiff from the Harman Undertaking.

The Court's decision was based on the unique facts of the case and the specific circumstances that had arisen. The Court found that the release of the plaintiff from the undertaking was appropriate given the changed circumstances and that it would not unfairly prejudice the defendant. The Court also found that the plaintiff had taken reasonable steps to mitigate any potential prejudice to the defendant. The Court's decision highlights the importance of considering the unique facts of each case when deciding whether to release a party from a Harman Undertaking.

The Court ordered that the plaintiff be released from the Harman Undertaking and that the application be listed for further directions. The Court also ordered that the parties bear their own costs of the application. The decision provides guidance to parties in similar situations and highlights the importance of considering the unique facts of each case when deciding whether to release a party from a Harman Undertaking.

Orders