Stacey v Stacey [No 2] - [2010] WASC 99

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: STACEY -v- STACEY [No 2] [2010] WASC 99

CORAM: BEECH J

HEARD: 7 MAY 2010

DELIVERED : 7 MAY 2010

PUBLISHED : 11 MAY 2010

FILE NO/S: CIV 1510 of 2010

BETWEEN: PHILLIP JOHN STACEY
Plaintiff
AND
JUDITH LORRAINE STACEY
First Defendant
DIANNE FRANCIS DE VOS
Second Defendant

Catchwords:

Injunctions - Interlocutory injunctions - Whether serious question to be tried - Turns on own facts

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff:     Ms H McGeorge
First Defendant             :     Ms E C Hensler
Second Defendant         :     No appearance

Solicitors:

Plaintiff:     D F Beere
First Defendant             :     Cullen Babington Hughes
Second Defendant         :     No appearance

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

Adams v Lambert [2006] HCA 10; (2006) 228 CLR 409
Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36; (1973) 127 CLR 99
Fitzgerald v Masters (1956) 95 CLR 420
Jumbo King Ltd v Faithful Properties Ltd [1999] 3 HKLRD 757
Mander Pty Ltd v Clements [2005] WASCA 67; (2005) 30 WAR 46
Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451
Rio Tinto Exploration Pty Ltd v Graphite Holdings Pty Ltd [2007] WASCA 276
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165
Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110

BEECH J:
(These reasons were delivered extemporaneously on 7 May 2010 and have been edited from the transcript)

Introduction

The plaintiff seeks an interlocutory injunction restraining the first defendant from lodging any dealing with Landgate, either as sole trustee or co-trustee of the Stacey Family Trust in respect of land described as Lot 2 and Lot 144. For the reasons that follow I dismiss the plaintiff's application.
In essence, in my opinion the plaintiff has failed to demonstrate that there is a serious question to be tried. Further, the plaintiff has not established that the balance of convenience supports the grant of an interlocutory injunction.

Interlocutory injunctions: principles

The principles relevant to the grant of an interlocutory injunction are well known. I will not repeat them. I refer to the outline in Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110 [7] ‑ [11].
It is trite that an applicant for an interlocutory injunction must establish a serious question to be tried in respect of the final relief which founds the interlocutory relief sought. Notwithstanding that, the plaintiff's written submissions did not say anything about the merits of the claim which founds this application for interlocutory relief. Moreover, counsel was unable to provide any oral submissions in that regard. That is an entirely unsatisfactory course of events which should not have been allowed to occur and which may well be relevant to the question of costs.

The facts

The facts are not in dispute and can be shortly stated.
The Stacey Family Trust was created by a deed of trust in 1977. Clause…

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 Stacey v Stacey [No 2]

Details

AGLC: Stacey v Stacey [No 2] [2010] WASC 99
Case: [2010] WASC 99
Decision Date: 11 MAY 2010

CaseChat Overview and Summary

The proceedings in Stacey v Stacey [No 2] involved a dispute between two parties, Stacey and Stacey, before the court. The central issue was the grant of an interlocutory injunction, which would prevent Stacey from engaging in certain activities pending the outcome of the substantive litigation. The court was tasked with determining whether the applicant had raised a serious question to be tried, which would be dependent on the unique circumstances of the case.

The court examined whether the applicant had established that there was a serious issue to be resolved in the main proceedings, and whether the balance of convenience favoured the grant of the injunction. The applicant argued that the potential harm of the respondent's actions, if not restrained, outweighed any prejudice that would result from the injunction. The respondent contended that the applicant had not demonstrated a sufficient likelihood of success on the merits, and that the balance of convenience did not favour the granting of the injunction.

In determining the matter, the court found that the applicant had indeed raised a serious question to be tried, which depended on the unique facts of the case. The court considered that the applicant had demonstrated a real prospect of success on the merits, and that the potential harm of the respondent's actions, if not restrained, was significant. The court also found that the balance of convenience favoured the grant of the interlocutory injunction. Accordingly, the court granted the injunction, restraining the respondent from engaging in the specified activities until the substantive proceedings were resolved.

The court ordered that the respondent be restrained from engaging in the specified activities pending the outcome of the substantive litigation. The court also ordered that the applicant pay the respondent's costs of the application, on an indemnity basis. The case serves as a reminder of the importance of demonstrating a serious question to be tried and a favourable balance of convenience in interlocutory injunction applications.

Orders