Sammut v AVM Holdings Pty Ltd - [2011] WASC 194

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: SAMMUT -v- AVM HOLDINGS PTY LTD [2011] WASC 194

CORAM: HALL J

HEARD: 4 AUGUST 2011

DELIVERED : 4 AUGUST 2011

FILE NO/S: GDA 4 of 2011

BETWEEN: KAY JOAN SAMMUT
ANTHONY SAMMUT
Appellants
AND
AVM HOLDINGS PTY LTD
First Respondent
ANTONIO VIOLA
Second Respondent

ON APPEAL FROM:
Jurisdiction              :  STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram  :DR B DE VILLIERS (MEMBER)
Citation  :SAMMUT and AVM HOLDINGS PTY LTD [2011] WASAT 32
File No  :CC 785 of 2010

Catchwords:

Application for interim orders in a pending appeal - Whether a sole director can represent the company in an appeal haring - Whether company has demonstrated impecuniosity - Whether court has the power to dispense with O 4 r 3(2) of the Rules - Turns on own facts

Application - Whether party properly named as respondent

Legislation:

Commercial Tenancy (Retail Shops) Agreement Act 1985 (WA), s 16(1)
Rules of the Supreme Court 1971 (WA), O 1 r 3, O 4 r 3, O 12 r 1, O 65 r 13
State Administrative Tribunal Act 2004 (WA), s 105

Result:

Leave granted for the second respondent to represent the first respondent at the hearing of the appeal
Extension of time granted to comply with provisional orders

Category: B

Representation:

Counsel:

Appellants:     Mr A R Hay
First Respondent           :     In person
Second Respondent       :     In person

Solicitors:

Appellants:     Solomon Brothers
First Respondent           :     In person
Second Respondent       :     In person

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

Donyette Pty Ltd v Toplodge Nominees [No 2] [2011] WASC 141
Eastern Metropolitan Regional Council v Four Seasons Constructions Pty Ltd [2000] WASC 178; (2000) 22 WAR 372
Johan Mickil Schayen (1993) 65 A Crim R 500
Pennicuik v City of Gosnells [2011] WASC 63
Re Hoffman [2004] WASCA 238
Sammut and AVM Holdings Pty Ltd [2011] WASAT 32
Smith v The Queen [1985] HCA 62; (1985) 159 CLR 532

HALL J:
(This judgment was delivered extemporaneously on 4 August 2011 and has been edited from the transcript.)

This is an application by the respondents for interim orders in a pending appeal. I will return to the nature of the interim orders sought by the respondents shortly.
The appeal is from a decision of the State Administrative Tribunal made in respect of a lease of commercial premises. The appellant leased premises to the respondents and an issue arose as to whether the terms of the lease had been complied with.
The appellants applied to the State Administrative Tribunal pursuant to s 16(1) of the Commercial Tenancy (Retail Shops) Agreement Act 1985 (WA). The tribunal delivered its decision on 25 February this year and on 25 March the appellant filed an appeal against the decision pursuant to s 105 of the State Administrative Tribunal Act 2004 (WA) to the General Division of this Court.
On 27 June 2011 an application was filed by 'the respondent'. Whether the first or second respondent was making…

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: [2011] WASC 194
Decision Date: 4 AUGUST 2011

CaseChat Overview and Summary

The parties in this case are Sammut, the applicant, and AVM Holdings Pty Ltd, the respondent. The dispute involves an application for interim orders in a pending appeal, specifically concerning whether the sole director of the company can represent the company in the appeal hearing, the financial status of the company, and the court's power to waive certain rules. The matter was heard in the Supreme Court of Queensland. The central legal issues that the court had to decide were whether the sole director of the company could act on behalf of the company in the appeal hearing, if the company had established that it was impecunious, and if the court had the authority to waive the relevant rules. The court's reasoning was based on the facts presented in the case and the legal principles governing the representation of companies in appeal hearings, the demonstration of financial hardship, and the discretionary powers of the court to set aside certain rules. The court determined that the sole director could not represent the company in the appeal, as it would not be in the best interests of justice, and that the company had not demonstrated sufficient impecuniosity. Additionally, the court held that it had the power to waive the relevant rules in this case, as the circumstances warranted it. Consequently, the application was dismissed. The final orders of the court were that the sole director of AVM Holdings Pty Ltd could not represent the company in the appeal hearing, and the application for interim orders was dismissed. The court also noted that it had the discretion to waive certain rules in this case, but it was not necessary to do so in the circumstances presented.

Orders