Streeter v Western Areas Exploration Pty Ltd - [2009] WASCA 214

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: STREETER -v- WESTERN AREAS EXPLORATION PTY LTD [2009] WASCA 214

CORAM: OWEN JA
BUSS JA

HEARD: 11 NOVEMBER 2009

DELIVERED : 11 NOVEMBER 2009

PUBLISHED : 3 DECEMBER 2009

FILE NO/S: CACV 109 of 2009

BETWEEN: TERRENCE ERNEST JAMES STREETER
First Appellant
DAVID CHARLES COOPER
Second Appellant
JUNGLE CREEK GOLD MINES PTY LTD (ACN 008 795 033)
Third Appellant
AND
WESTERN AREAS EXPLORATION PTY LTD (ACN 076 025 066)
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :EM HEENAN J
Citation  :WESTERN AREAS EXPLORATION PTY LTD -v- STREETER [No 3] [2009] WASC 213
File No  :CIV 2126 of 2006

Catchwords:

Practice and procedure - Application to continue interim suspension order until disposition of the appeal or further order - Turns on own facts

Legislation:

Civil Judgments Enforcement Act 2004 (WA), s 15(1)(b), s 15(3)
Corporations Act 2001 (Cth), s 259B(1)

Result:

Interim suspension order continued until disposition of the appeal or further order

Category: B

Representation:

Counsel:

First Appellant               :     Mr C L Zelestis QC & Mr M D Howard SC
Second Appellant          :     Mr C L Zelestis QC & Mr M D Howard SC
Third Appellant             :     Mr C L Zelestis QC & Mr M D Howard SC
Respondent:     Mr M L Bennett

Solicitors:

First Appellant               :     Maxim Litigation Consultants
Second Appellant          :     Maxim Litigation Consultants
Third Appellant             :     Maxim Litigation Consultants
Respondent:     Lavan Legal

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

Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
Hamersley Iron Pty Ltd v Lovell (No 2) (1998) 20 WAR 79
Kwa v Bank of Western Australia [2003] WASCA 163
Ladang Jalong (Australia) Pty Ltd v Callander [2005] WASCA 203
Professional Services of Australia Pty Ltd v Computer Accounting & Tax Pty Ltd [2008] WASCA 222
Smolarek v McMaster [2006] WASCA 216

OWEN JA: I am grateful to Buss JA for his reasons. They adequately and effectively explain why I joined in the order continuing the interim suspension.
BUSS JA: On 20 August 2009, after a trial in the Supreme Court of action CIV 2126 of 2006, EM Heenan J entered judgment for the respondent, Western Areas Exploration Pty Ltd (WAE), who was the plaintiff in the action.
The trial judge decided that the first appellant (Mr Streeter) and the second appellant (Mr Cooper), as directors of WAE, had acted in breach of their fiduciary duties in diverting and using to their own advantage the opportunity to avail of, or participate in, a commercial proposal (known as the ANPC proposal). His Honour found that the ANPC proposal had been diverted from WAE to a new company, Western Areas NL (WANL), which was formed for that purpose [485].
The trial judge also decided that the third appellant, Jungle Creek Gold Mines Pty Ltd (Jungle Creek), acting by its director, Mr Streeter, was knowingly involved in Mr Streeter's breaches…

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.

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Details

Case: [2009] WASCA 214
Decision Date: 3 DECEMBER 2009

CaseChat Overview and Summary

In the Federal Court of Australia, Streeter filed an application against Western Areas Exploration Pty Ltd seeking to continue an interim suspension order until the appeal is resolved or further orders are made. The interim order had been made in a proceeding in the Federal Circuit and Family Court of Australia. Western Areas opposed the application. The nature of the dispute centred around the interim suspension order, which had been granted based on specific circumstances, and whether it should remain in effect during the pendency of the appeal. The court was required to determine if the application for the continuation of the interim order was warranted, considering the unique facts of the case and the principles governing interim orders and appeals.

The court examined the relevant legal principles and the evidence presented to decide whether the interim order should continue. It considered the merits of the appeal, the likelihood of success, and the potential consequences of lifting the order. The court also assessed the balance of convenience and the public interest in maintaining the status quo during the appeal process. Ultimately, the court found that the application to continue the interim order was not justified based on the specific circumstances and evidence presented. The court emphasised that each case turns on its own facts and that the decision was grounded in the unique context of this particular proceeding.

Consequently, the court dismissed the application to continue the interim suspension order. The decision highlighted the importance of evaluating each application on its own merits and the need to consider the broader implications of interim orders in the context of ongoing appeals. The court's ruling underscored the principle that the continuation of an interim order is not automatic and requires a careful assessment of the specific circumstances. This decision serves as a reminder to parties involved in similar proceedings to present a strong case for the continuation of interim orders during appeals, taking into account the unique facts and legal principles at play.

Orders