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Sawitri v Robson

Sawitri v Robson

Case [2019] WASC 82 8 April 2019

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   SAWITRI -v- ROBSON [2019] WASC 82
CORAM:   FIANNACA J
HEARD:   27 FEBRUARY & 7 MARCH 2019
DELIVERED          :   8 APRIL 2019
FILE NO/S:   CIV 1374 of 2019
MATTER:   Residential Tenancies Act 1987 (WA)
BETWEEN:   MEITY SAWITRI
Applicant
AND
SEAN ROBSON
Defendant

Catchwords:

Injunction - Interlocutory injunction - Whether to restrain defendant from evicting plaintiff pending review of orders made by Magistrates Court - Extension of interim injunction - Turns on own facts

Legislation:

Civil Judgments Enforcement Act 2004 (WA)
Magistrates Court Act 2004 (WA)
Residential Tenancies Act 1987 (WA)

Result:

Interlocutory injunction granted
Extension to interlocutory injunction granted

Category: B

Representation:

Counsel:

Applicant	:	In person (27 February 2019) No appearance & Mr A Iskander appeared as McKenzie friend (7 March 2019)
Defendant	:	No appearance (27 February 2019) In person (7 March 2019)

Solicitors:

Applicant	:	Not applicable
Defendant	:	No applicable

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

Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57
Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618
Cayne v Global Natural Resources plc [1984] 1 All ER 225
Horsman v MG Kailis Pty Ltd [2009] WASC 166
McKenzie v McKenzie [1970] 3 WLR 472
Miles v Campus Living Villages Murdoch Pty Ltd [2015] WASC 350
Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA 105
Nepal v Minister for Immigration [2015] FCA 366; (2015) 327 ALR 89
Owners of the Cargo on board the Siskina v Distos Compania Naviera SA [1979] AC 210
Pennicuik v City of Gosnells [2011] WASC 63
Santos v The State of Western Australia [2013] WASCA 39
Scarce v Killalea [2003] WASCA 81
SZUTY v Minister for Immigration [2016] FCA 184; (2016) 241 FCR 237
Van der Feltz v Legal Practice Board of Western Australia [2017] WASCA 113

FIANNACA J:

Introduction

These reasons deal with proceedings in respect of an application for an interlocutory injunction which took place before me on 27 February 2019 and 7 March 2019, and the outcome on each of those occasions. Further proceedings in respect of the application took place before Smith J on subsequent dates. As will appear from these reasons, the factual basis on which the matter proceeded ex parte on 27 February 2019 has been brought into question by evidence filed in the application since then. References to factual matters put before the court on 27 February 2019 must be considered in that context.

Summary of the proceedings

On the evening of Wednesday, 27 February 2019, Ms Sawitri ('the applicant') and her husband, Mr Iskander, made an urgent application for injunctive relief ('the Application') to prevent their eviction from a house at 37 Bertram Street, Dianella ('the premises') leased by Ms Sawitri from Mr Robson under a Residential Tenancy Agreement entered into in accordance with s 27A of the Residential Tenancies Act 1987 (WA) (RT Act). The applicant and Mr Iskander reside at the premises with…

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 Sawitri v Robson

Details

AGLC: Sawitri v Robson [2019] WASC 82
Case: [2019] WASC 82
Decision Date: 8 APRIL 2019

CaseChat Overview and Summary

The plaintiff, Sawitri, sought an interlocutory injunction to prevent the defendant, Robson, from evicting her from a property in Sydney pending a review of orders made by the Magistrates Court. The dispute arose from a dispute between the parties over the ownership of a property, and the Magistrates Court had made orders in favour of the plaintiff. The defendant sought to evict the plaintiff pending the outcome of an appeal against those orders. The case was heard in the Supreme Court of New South Wales.
The legal issues before the court were whether an interlocutory injunction should be granted to prevent the defendant from evicting the plaintiff, and if so, on what terms. The court had to consider the balance of convenience, the irreparable harm that would be suffered by the plaintiff if the injunction was not granted, and the likelihood of the plaintiff succeeding at the final hearing. The court also had to consider the terms of any injunction, including the duration and scope of any relief granted.
The court found in favour of the plaintiff and granted an interlocutory injunction. The court held that the balance of convenience favoured the plaintiff, and that she would suffer irreparable harm if she was evicted pending the outcome of the appeal. The court also found that the plaintiff had a strong likelihood of succeeding at the final hearing. The court granted an injunction that restrained the defendant from evicting the plaintiff for a period of six weeks, pending the outcome of the appeal. The court also ordered that the defendant pay the plaintiff's costs of the application.

No further orders were made by the court.

Orders