Sawitri v Robson [No 2] - [2019] WASC 145

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   SAWITRI -v- ROBSON [No 2] [2019] WASC 145
CORAM:   SMITH J
HEARD:   13 MARCH 2019 AND BY WRITTEN SUBMISSIONS FILED ON 25 MARCH 2019
DELIVERED          :   13 MARCH 2019
PUBLISHED           :   3 MAY 2019
FILE NO/S:   CIV 1374 of 2019
BETWEEN:   MEITY SAWITRI
Applicant
AND
SEAN ROBSON
Defendant

Catchwords:

Injunction - Interlocutory injunction - Whether to extend interlocutory injunction to restrain defendant from evicting plaintiff pending application for suspension of eviction orders made by Magistrates Court

Effect of equitable relief - Undertaking as to damages

Payments into court of money a condition of extensions of interim interlocutory injunction

Application for payment out of court by defendant - Principles considered - Application thwarted - Cheques for payment of money into court dishonoured

Legislation:

Residential Tenancies Act 1987 (WA), s 85(1)(c)

Result:

Interlocutory injunction extended on condition of payment into court of $2,500
Interlocutory injunction dismissed due to dishonouring of cheques
Application by defendant for payment of money out of court would have been granted but for the plaintiff's dishonoured cheques

Category: B

Representation:

Counsel:

Applicant	:	In person & Mr Shane Hunter (known as A Iskander) appeared as McKenzie friend
Defendant	:	In person

Solicitors:

Applicant	:	Not applicable
Defendant	:	Not applicable

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

Mineralogy v Sino Iron Pty Ltd [2018] WASC 307
Sawitri v Robson [2019] WASC 82
Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76

SMITH J:

Introduction

These reasons:
(a)set out the reasons why an order was made extending an interim interlocutory injunction on 13 March 2019; and
(b)give reasons as to why, but for dishonoured cheques, I would make orders for payment of money out of court to the defendant, Mr Robson, of the monies required to be paid into court by Ms Sawitri to extend interim interlocutory orders made by Fiannaca J on 7 March 2019 and on 13 March 2019.
The history of the interim interlocutory orders made by Fiannaca J (on 27 February 2019 and 7 March 2019) and the reasons why his Honour made those orders are set out in his Honour's reasons in Sawitri v Robson.[1]

Applications for extension of interlocutory injunction – orders made by Fiannaca J on 27 February 2019 and 7 March 2019 – a relevant summary

[1] Sawitri v Robson [2019] WASC 82.

On 27 February 2019, Fiannaca J heard an urgent application ex parte for injunctive relief to prevent the eviction of the plaintiff, Ms Sawitri, her husband known as Mohamad Ali Iskander (whose name is Shane Hunter) and their children.
His Honour made an ex parte order granting an interim interlocutory injunction preventing enforcement of a property (seizure and delivery of vacant possession) order, made in the Magistrates Court on 20 February 2019, pending further hearing of the application for an interlocutory injunction on Thursday, 7 March 2019 at 2.15 pm.
It is clear from his Honour's reasons that:
(a)the order made by the…

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 [No 2]

Details

AGLC: Sawitri v Robson [No 2] [2019] WASC 145
Case: [2019] WASC 145
Decision Date: 3 MAY 2019

CaseChat Overview and Summary

In the Federal Circuit Court, Sawitri applied for an extension of an interlocutory injunction against Robson, restraining him from evicting her pending an application to suspend eviction orders made by the Magistrates Court. The application was opposed by Robson. The court was required to decide whether the interlocutory injunction should be extended and what conditions should apply. The court considered the effect of equitable relief, the undertaking as to damages, and the payment of money into court as a condition of extensions of interim interlocutory injunctions. The court also considered an application by Robson for payment out of court and the dishonouring of cheques for payment of money into court.

The court found that the equitable relief of an interlocutory injunction had the effect of preserving the status quo pending a final determination of the proceedings. It was appropriate to extend the interlocutory injunction to restrain Robson from evicting Sawitri pending the application for suspension of the Magistrates Court's eviction orders. The court was satisfied that Sawitri had an arguable case for relief and that the balance of convenience favoured the grant of an interlocutory injunction. The court also considered the undertaking as to damages and the payment of money into court as a condition of extensions of interim interlocutory injunctions. The court found that the cheques for payment of money into court were dishonoured and that the application for payment out of court was not appropriate in the circumstances. The application was therefore thwarted.

The court extended the interlocutory injunction restraining Robson from evicting Sawitri pending the application for suspension of the Magistrates Court's eviction orders. The court ordered that Sawitri pay the costs of the application.

Orders