TEY -v- OPTIMA FINANCIAL GROUP PTY LTD [2013] WASC 384

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASC 384
Case No:	CIV:2534/2013	Heard:	11 OCTOBER 2013
Coram:	HALL J	Delivered:	11/10/13
No of pages:	6	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
PDF Version

Parties:	KOK YONG TEY OPTIMA FINANCIAL GROUP PTY LTD
Catchwords:	Injunction Suspension order under Civil Judgments Enforcement Act 2004 (WA) Property seizure and sale order Whether order provided authority to sell land owned by the plaintiff Injunction to prevent transfer of land already sold Whether serious question to be tried Suspension order in respect of judgment Only available from court that gave the judgment or an appeal court
Legislation:	Civil Judgments Enforcement Act 2004 (WA), s 5, s 71, s 80
Case References:	Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : TEY -v- OPTIMA FINANCIAL GROUP PTY LTD [2013] WASC 384 CORAM : HALL J HEARD : 11 OCTOBER 2013 DELIVERED : 11 OCTOBER 2013 FILE NO/S : CIV 2534 of 2013 BETWEEN : KOK YONG TEY

Plaintiff

AND

OPTIMA FINANCIAL GROUP PTY LTD

Respondent

Catchwords:

Injunction - Suspension order under Civil Judgments Enforcement Act 2004 (WA) - Property seizure and sale order - Whether order provided authority to sell land owned by the plaintiff - Injunction to prevent transfer of land already sold - Whether serious question to be tried - Suspension order in respect of judgment - Only available from court that gave the judgment or an appeal court

Legislation:

Civil Judgments Enforcement Act 2004 (WA), s 5, s 71, s 80

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff : In person

Respondent : Mr S V Forbes

Solicitors:

Plaintiff : In person

Respondent : De Vita & Dixon Lawyers

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

Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110

HALL J

(These reasons were delivered orally and have been edited from the transcript.)

Introduction

1 This is an application for an injunction.

2 On 9 October 2013 Ms Tey appeared, seeking an urgent injunction. She supported her application with an affidavit. After listening to Ms Tey for some time it remained unclear why she wanted an injunction, who it was to be directed to and what form it was to take.

3 Things were not assisted by the fact that the respondent had not been served with papers or put on notice of the application. No good reason for failing to do this was given.

4 Ms Tey said she had consulted a lawyer and wanted another opportunity to speak to him. I adjourned proceedings to today, ordered that the respondent and the Registrar of Titles be served with papers, and gave leave to Ms Tey to bring the matter back on urgently in the interim, but only on notice to the respondent and the Registrar of Titles.

5 The position today is that Ms Tey…

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: [2013] WASC 384
Decision Date

CaseChat Overview and Summary

The case of Tey v Optima Financial Group Pty Ltd involved the plaintiff, Kok Yong Tey, who sought an injunction and a stay of the property sale and seizure order obtained by the respondent, Optima Financial Group Pty Ltd. The property in question was a piece of land in Thornlie, which had been sold by the sheriff following a property seizure and sale order. Tey argued that the property seizure order issued on the application of Optima did not provide authority for the sale of the Thornlie land and that the other property seizure orders should have been discharged because she had paid the judgment debts related to those orders. The court had to decide whether Tey had established a serious question to be tried and whether the balance of convenience favoured the grant of an injunction.

The court found that Tey had not satisfied the requirements for an injunction, as there was no serious question to be tried and the balance of convenience did not favour Tey. The court noted that Tey had no cause of action against anyone, as the sale of the Thornlie property appeared to be lawful and in accordance with the Civil Judgments Enforcement Act 2004 (WA). Furthermore, Tey's assumption that the property sale and seizure order did not authorize the sale of the Thornlie property was incorrect, as the order applied to any saleable interest in land the debtor had at the time the order was registered or received by the sheriff. The court also found that Tey had failed to make any reasonable effort to put the interested parties properly on notice of the application and had brought the proceedings at the latest possible time. Consequently, the application for an injunction and a stay of the property sale and seizure order was dismissed.

Orders