Re Mark William Bowra - [2023] WASC 478

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   RE MARK WILLIAM BOWRA; EX PARTE MARK WILLIAM BOWRA [2023] WASC 478
CORAM:   HILL J
HEARD:   14 DECEMBER 2023
DELIVERED          :   14 DECEMBER 2023
FILE NO/S:   TRU 12 of 2023

EX PARTE
MARK WILLIAM BOWRA
Plaintiff

Catchwords:

Practice and procedure - Application for interim injunction - Ex parte application - Defendant is trustee of a testamentary trust - Where defendant has failed to file accounts despite order of court - Where defendant has failed to provide information in relation to testamentary trust - Where plaintiff has filed application for replacement of trustee - Serious question to be tried as to whether defendant has breached duties as trustee - Balance of convenience - Turns on own facts

Practice and procedure - Application for freezing order - Ex parte application - Whether there is a risk of removal or dissipation of assets - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 52A

Result:

Application granted

Category: B

Representation:

Counsel:

Plaintiff

J S Slack-Smith

Solicitors:

Plaintiff

CX Law

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

Australian Broadcasting Corp v O'Neill [2006] HCA 46; (2006) 227 CLR 57
Cardile v LED Builders Pty Ltd [1999] HCA 18; (1999) 198 CLR 380
Deputy Commissioner of Taxation v Winter (1988) 92 FLR 327
Distinctive FX Pty Ltd v Wright [2015] VSC 299
Glenwood Management Group Pty Ltd v Mayo [1991] 2 VR 49
Jackson v Sterling Industries Ltd (1987) 162 CLR 612
Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319
Perdaman Chemicals & Fertilisers Pty Ltd v The Griffin Coal Mining Company Pty Ltd [2011] WASC 188
Perth Mint v Mickelberg (No 2) [1985] WAR 117
Rimex Wheel Pty Ltd v Wulff [2018] WASC 180
Victoria University of Technology v Wilson [2003] VSC 299
Zhen v Mo [2008] VSC 300

HILL J:

(This judgment was delivered extemporaneously and has been edited from the transcript.)

The plaintiff filed an originating summons on 5 September 2023, seeking orders for the removal of the defendant as trustee of a testamentary trust (Trust) and for his appointment as trustee of the Trust.
On 8 November 2023, orders were made for substituted service of the originating summons and the affidavits that had been filed on behalf of the plaintiff by email to two separate email addresses. On 13 November 2023, these orders were amended to include service by delivery of these documents to an address in Malaga, Western Australia, which is the defendant's place of employment.
As at the time of the hearing today, no memorandum of appearance has been filed by the defendant.
On 13 December 2023, the plaintiff filed a notice of motion for an injunction to preserve the assets of the Trust and also sought orders for a freezing order to be issued. In support of the application, the plaintiff relied on four affidavits he has sworn in these proceedings (filed 24 July 2023, 26 September 2023, 6…

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 Re Mark William Bowra

Details

AGLC: Re Mark William Bowra [2023] WASC 478
Case: [2023] WASC 478
Decision Date: 14 DECEMBER 2023

CaseChat Overview and Summary

The case of Re Mark William Bowra involved an ex parte application for an interim injunction and a freezing order. The plaintiff sought these orders against the defendant, who was the trustee of a testamentary trust. The dispute arose from the defendant's failure to file accounts and provide information regarding the trust, despite prior court orders. The plaintiff filed an application for the defendant's replacement as trustee, raising a serious question about potential breaches of the defendant's fiduciary duties. The application was made ex parte, without the defendant's knowledge or involvement, and focused on the balance of convenience and the risk of asset dissipation.

The court was required to determine whether the plaintiff had demonstrated a serious question to be tried regarding the defendant's alleged breaches of trust. Additionally, the court needed to assess whether the balance of convenience favoured granting the interim injunction and whether there was a real risk of the defendant removing or dissipating trust assets. These determinations were heavily fact-specific and relied on the unique circumstances of the case.

The court found that the plaintiff had raised a serious question to be tried and that the balance of convenience favoured the grant of the interim injunction. The court also found that there was a real risk of asset dissipation, which warranted the freezing order. Consequently, the court granted the ex parte application, issuing both the interim injunction and the freezing order. This decision was based on the specific facts and evidence presented in the application.

The final orders of the court included the interim injunction, preventing the defendant from acting as trustee until further order, and the freezing order, restraining the defendant from disposing of or removing trust assets. The orders were made to protect the interests of the beneficiaries and to ensure that the defendant complied with the court's previous orders regarding the trust.

Orders