Secure Parking (WA) Pty Ltd v Wilson
[2006] WASCA 200
•22 SEPTEMBER 2006
SECURE PARKING (WA) PTY LTD -v- WILSON & ANOR [2006] WASCA 200
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 200 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:141/2005 | 22 SEPTEMBER 2006 | |
| Coram: | BUSS JA | 22/09/06 | |
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Application allowed | ||
| B | |||
| PDF Version |
| Parties: | SECURE PARKING (WA) PTY LTD (ACN 073 500 160) ALFRED KARL WILSON NULLAGINE INVESTMENTS PTY LTD (ACN 008 729 717) PARKING ASSET MANAGEMENT |
Catchwords: | Appeal Application to add a further respondent to the appeal Turns on own facts |
Legislation: | Nil |
Case References: | Nil Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : SECURE PARKING (WA) PTY LTD -v- WILSON & ANOR [2006] WASCA 200 CORAM : BUSS JA HEARD : 22 SEPTEMBER 2006 DELIVERED : 22 SEPTEMBER 2006 FILE NO/S : CACV 141 of 2005 BETWEEN : SECURE PARKING (WA) PTY LTD (ACN 073 500 160)
- Appellant
AND
ALFRED KARL WILSON
First Respondent
NULLAGINE INVESTMENTS PTY LTD (ACN 008 729 717)
Second Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : LE MIERE J
Citation : SECURE PARKING (WA) PTY LTD -v- WILSON & ANOR [2005] WASC 264
File No : CIV 1074 of 2003
(Page 2)
Catchwords:
Appeal - Application to add a further respondent to the appeal - Turns on own facts
Legislation:
Nil
Result:
Application allowed
Category: B
Representation:
Counsel:
Appellant : Mr G R Hancy
First Respondent : No appearance
Second Respondent : No appearance
Proposed Third Respondent : Mr M S van Brakel
Solicitors:
Appellant : Talbot & Olivier
First Respondent : No appearance
Second Respondent : No appearance
Proposed Third Respondent : Clayton Utz
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
(Page 3)
1 BUSS JA: This is an application by the appellant to add Parking Asset Management (WA) Pty Ltd ("Parking Asset Management") as a third respondent to the appeal. The application is supported by an affidavit of Brendan Hamish Taylor sworn on 24 August 2006. The appellant submits that Parking Asset Management is a necessary party to the appeal. It was not a party to the proceedings below.
2 The first respondent, Mr Alfred Karl Wilson, and the second respondent, Nullagine Investments Pty Ltd, did not appear today. Their solicitors have sent facsimiles indicating that their clients neither oppose nor consent to the proposed joinder of Parking Asset Management.
3 Parking Asset Management appeared today by counsel. It relied on an affidavit sworn by Mark Simon van Brakel on 21 September 2006. Parking Asset Management submitted that the proposed joinder was premature. In particular, it contended that Parking Asset Management did not have an interest in relation to the grounds of appeal or the substantive merits of the appeal. It would have an interest only if the appeal were to be allowed, and the Court was considering the relief to be granted to the appellant.
4 Parking Asset Management's interest in the relief would arise from its status as lessee of The Esplanade Carpark pursuant to a lease granted after the learned Judge below entered judgment on 20 October 2005. His Honour delivered reasons for decision in December 2005. The lease in question was executed on 30 January 2006 between the second respondent as lessor, Parking Asset Management as lessee and Lawrence Leslie Wilson as guarantor.
5 Mr van Brakel's affidavit annexes a newspaper article which suggests that the second respondent may have sold or entered into an agreement to sell the New Esplanade Hotel. The car park in question forms part of the hotel premises. Mr Hancy informed me from the bar table that the appellant contested the suggestion that the hotel had been sold or was the subject of an agreement for sale. The evidence before the Court is unsatisfactory in relation to whether the hotel has been sold or not.
6 I am satisfied, on the evidence currently before the Court, that if the appeal were to be allowed, then Parking Asset Management would have an interest in the relief to be granted to the appellant.
7 I am also satisfied, on the evidence currently before the Court, that if the appeal were to be allowed then other entities, not currently party to the appeal, may have an interest in the relief to be granted.
(Page 4)
8 The appeal, as currently constituted, seeks to set aside the judgment of the learned Judge below on the basis set out in the grounds of appeal. The appeal, as currently constituted, also seeks a variety of relief in the event that either or both of the grounds of appeal are made out. On the appeal, as currently constituted, it is apparent that Parking Asset Management has an interest in the appeal, even though its interest is contingent on the appeal being allowed. In that event, Parking Asset Management would require to be heard in relation to what relief should be granted consequent upon the appellant's success on the substantive issues.
9 The question of the joinder of Parking Asset Management also raises the issue as to whether the appeal should be split, in the sense that issues relating to whether the substantive issues should be found in favour of the appellant or not should be heard and determined separately from and prior to issues relating to the relief to be granted to the appellant in the event it is successful on the substantive issues. None of the existing parties to the proceedings has made an application of this kind and it is an application which may in due course be made by one or more of the existing parties or indeed by Mr van Brakel's client if I order that it be joined as a party.
10 The appellant's application to join Parking Asset Management must be determined on the basis of the appeal as it is currently constituted, and also having regard to the appellant's proposed amendment of the orders sought in the appeal, which amendment is in the terms set out in annexure BHT6 to Mr Taylor's affidavit.
11 In the circumstances, I am satisfied that Parking Asset Management is a necessary and proper party to the appeal and that it should be added as a third respondent. I am also satisfied that leave should be granted in terms of par 2 of the minute of proposed orders dated 22 September 2006 for the orders sought by the appellant on the appeal to be amended in the terms I have mentioned.
12 I should add that it is by no means clear, at this stage, that at the hearing of the appeal it will be possible for the Court to determine, on the papers which have currently been filed, the relief that should be granted to the appellant in the event that it is successful in relation to the substantive issues. Each of the parties to the proceedings, including Parking Asset Management, should give careful consideration as to whether application should be made to the Court for the substantive issues to be heard and determined separately from and prior to issues relating to the relief.
2