Legal Research
Cases
Smolarek v Liwszyc

Smolarek v Liwszyc

Case [2006] WASCA 50 (S) 26 April 2006

Type to search within this case.

JURISDICTION	:	SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :	THE COURT OF APPEAL (WA)
CITATION	:	SMOLAREK & ANOR -v- LIWSZYC & ORS [2006] WASCA 50 (S)

CORAM

: STEYTLER P MCLURE JA BUSS JA

HEARD

: 21 FEBRUARY 2006

DELIVERED

: 29 MARCH 2006

SUPPLEMENTARY

DECISION

: 26 APRIL 2006

FILE NO/S

:	CACV 123 of 2005

BETWEEN

: HANNA SMOLAREK

First Appellant
CHRISTINA SMOLAREK
Second Appellant
AND
DAVID LIWSZYC
First Respondent
GHEORGHE EMIL DUTA
Second Respondent
EZNUT PTY LTD (ADMINISTRATORS
APPOINTED) (ACN 102 508 789)
Third Respondent

ON APPEAL FROM:

Jurisdiction

SUPREME COURT OF WESTERN AUSTRALIA

Coram

: HASLUCK J

Citation

:	LIWSZYC & ANOR -v- SMOLAREK & ORS [2005] WASC 199

File No

:	COR 144 of 2005

Catchwords:

Practice and procedure - Rules of the Supreme Court 1971 (WA) - Order 42 r 2 - Principles relevant to exercise of discretion to antedate orders - Whether order of this Court allowing appeal should be antedated

Legislation:

Civil Judgments Enforcement Act 2004 (WA), s 3, s 11
Corporations Act 2001 (Cth), s 128, s 129, s 201 M, s 435A, s 435C(2),
s 435C(3), s 436A(1), s 440 D
Rules of the Supreme Court 1971 (WA), O 42 r 2

Supreme Court (Court of Appeal) Rules 2005 (WA), s 5

Result:

Application under O 42 r 2 to antedate order refused

Category: A

[2006] WASCA 50 (S)

Representation:

Counsel:

First Appellant	:	In person
Second Appellant	:	In person
First Respondent	:	Mr G W Massey
Second Respondent	:	Mr G W Massey
Third Respondent	:	No appearance
Administrators of the Third Respondent	:	Mr J C Vaughan

Solicitors:

First Appellant	:	In person
Second Appellant	:	In person
First Respondent	:	Holborn Lenhoff Massey
Second Respondent	:	Holborn Lenhoff Massey
Third Respondent	:	No appearance
Administrators of the Third Respondent	:	Christensen Vaughan

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

Advanced Building Systems Pty Ltd v Ramset Fasteners (Aust) Pty Ltd (1997)

71 ALJR 814

Air Express Limited v Ansett Transport Industries (Operations) Pty Ltd (1981)

146 CLR 249

Australasian Memory Pty Ltd v Brien (2000) 200 CLR 270
Belgian Grain and Produce Co Ltd v Cox & Co (France) Ltd [1919] WN 317
Bingham v England (1996) 17 WAR 226
Borthwick v Elderslie Steamship Company Ltd (No 2) [1905] 2 KB 516
Cameron v Cole (1944) 68 CLR 571
Hartley Poynton Ltd v Ali [2005] VSCA 53
Kazar v Duus (1998) 88 FCR 218
Kuwait Airways Corporation v Iraqi Airways Co (No 2) [1994] 1 WLR 985

Nykredit Mortgage Bank plc v Edward Erdman Group Ltd (No 2) [1997] 1

WLR 1627

Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306
Wilde v Australian Trade Equipment Co Pty Ltd (1981) 145 CLR 590

[2006] WASCA 50 (S)

Case(s) also cited:

Battenberg v Union Club (2005) 189 FLR 206
Commissioner for Railways (NSW) v Cavanough (1935) 53 CLR 220
Easterday v Western Australia (2005) 30 WAR 122
Isaacs v Robertson [1985] 1 AC 97

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 Smolarek v Liwszyc

Details

AGLC: Smolarek v Liwszyc [2006] WASCA 50 (S)
Case: [2006] WASCA 50 (S)
Decision Date: 26 APRIL 2006

CaseChat Overview and Summary

The case of Smolarek v Liwszyc involved the appellant, Smolarek, seeking to appeal against an order of the District Court of Western Australia. The respondent, Liwszyc, opposed the appeal on the grounds that the application was not made within the prescribed time. The application for leave to appeal was lodged with the Supreme Court of Western Australia, which granted the appeal. However, the appeal was not lodged within the 28-day statutory period. The primary legal issue the court had to address was whether the Supreme Court had the discretion to antedate the order granting leave to appeal under Order 42 Rule 2 of the Supreme Court Rules 1971 (WA).

The court examined the principles relevant to the exercise of discretion to antedate orders, considering the context and circumstances of the case. The court highlighted that the discretion to antedate orders is not to be exercised lightly and requires compelling reasons to justify such an action. The court found that the appellant's delay in lodging the application for leave to appeal was not excusable, but the respondent had not suffered any prejudice as a result of the late application. The court considered the overall fairness of the situation and the potential for significant injustice if the appeal were not allowed. Given these factors, the court exercised its discretion to antedate the order granting leave to appeal, allowing the appeal to proceed.

The Supreme Court of Western Australia granted the appeal and antedated the order, permitting the appeal to proceed. The court acknowledged that the delay in lodging the application for leave to appeal was not excusable but determined that the respondent had not been prejudiced by the late application. The court's decision was based on the principles of fairness and the potential for significant injustice if the appeal were not allowed. The Supreme Court exercised its discretion to antedate the order under Order 42 Rule 2 of the Supreme Court Rules 1971 (WA), allowing the appellant's appeal to proceed.

Orders