Treacy v Rylestone Pty Ltd

Case [2002] WASC 178


TREACY & ORS -v- RYLESTONE PTY LTD & ORS [2002] WASC 178



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2002] WASC 178
Case No:CIV:2189/200128 & 29 MAY 2002
Coram:SCOTT J4/07/02
29Judgment Part:1 of 1
Result: Application dismissed
A
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Parties:JOANNE MARIE TREACY
GEORGE ROBERT SOULLIER
DOROTHY MARY JOY SOULLIER
COLIN DOUGLAS HENNING
DOREEN RUTH HENNING
RYLESTONE PTY LTD (ACN 009 351 768)
IVAN JOHN HILL
GEOFFREY TERRANCE ROWE
MORTGAGE FACILITIES PTY LTD (ACN 069 502 530)
LINDSAY CHARLES SPENCER SANFORD
JOHN CLARENCE LESTER WARD
CLAIRS KEELEY (A Firm)
RONALD GRAHAM O'CONNOR

Catchwords:

Practice & procedure
Interlocutory application by sixth defendant (solictor's firm) to stay action
Litigation funder agreement
Allegations that agreement tainted by champerty and maintenance
Litigation lending agreement to fund action by mortgagees
Solicitors appointed by litigation lender
Solicitors fee structure
Discretion to stay action for abuse of process

Legislation:

Debt Collectors Licensing Act 1964
Security and Related Activities (Control) Act 1996
Legal Practitioners Act 1893, s 59
Criminal Code Act 1913 (WA), s 7

Case References:

Bandwill Pty Ltd v Spencer-Laitt & Ors [2000] WASC 210
Faryab v Smyth [1998] EWCA Civ 146
Freehill Hollingdale and Page v Bandwill Pty Ltd [2000] WASCA 150
Giles v Thompson (1994) 1 AC 142
Gore v Justice Corp Pty Ltd [2002] FCA 354
In re Trepca Mines Ltd [1963] 1 Ch 199
Magic Menu Systems Pty Ltd v AFA Facilitation Pty Ltd & Ors (1996) 72 FCR 261
Movitor Pty Ltd (rec & mgr apptd) (in liq); Ex parte Sims (1996) 136 ALR 643
Neville v London "Express" Newspaper Ltd (1919) AC 368
Newton v Gapes (1910) 12 WALR 86
Stocznia Gdanska SA v Latreefers Inc [2000] EWCA Civ 36

Abraham v Thompson [1997] 4 All ER 362
Alexander v Ajax Insurance Co Ltd [1956] VLR 436
Allsop v Federal Commissioner of Taxation (1965) 113 CLR 341
Australian Health Insurance Association Ltd v Esso Australia Pty Ltd (1993) 116 ALR 253
Baxter v Obacelo Pty Ltd [2001] HCA 66; 184 ALR 616
Buiscex Ltd v Panfida Foods Ltd (in liq) (1998) 20 ACSR 357
Camdex International Ltd v Bank of Zambia [1998] QC 22
Carob Industries Pty Ltd (in liq) v Simto Pty Ltd, unreported; FCt SCt of WA; Library No 970692; 11 December 1997
Castlemaine Tooheys Ltd v Williams & Hodgson Transport Pty Ltd (1986) 162 CLR 395
Cayne v Global Natural Resources plc [1984] 1 All ER 225
Cliffs International Inc v Federal Commissioner of Taxation (1979) 142 CLR 140
Commonwealth v Temwood Holdings Pty Ltd [2001] WASC 282
Commonwealth v Temwood Holdings Pty Ltd [2002] WASC 107
Condliffe v Hislop [1996] 1 WLR 753
Egerton­Warburton v Deputy Federal Commissioner of Taxation (1934) 51 CLR 568
Elfic Ltd v Macks [2001] QCA 291; (2001) 162 FLR 41
Federal Commissioner of Taxation v Australian and New Zealand Savings Bank Ltd [1998] HCA 53; (1998) 194 CLR 328
Fidelitas Shipping Co Ltd…

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Treacy v Rylestone Pty Ltd [2002] WASC 178
Case
[2002] WASC 178
Decision Date

CaseChat Overview and Summary

This case concerned an application by a defendant to stay the proceedings on the basis that the agreement between the plaintiffs and a litigation funder was tainted by champerty. The plaintiffs were mortgagees who had entered into an agreement with a litigation funder, IMF, to fund their action to recover the mortgage funds. The agreement provided for a success fee of 35 per cent of any amount recovered from the defendant. The defendant argued that the agreement was champertous and that the proceedings should be stayed on the basis of abuse of process. The Court held that there was an arguable case that the agreement was champertous, but the Court refused to grant a stay on the basis that there was no evidence of actual interference in the proceedings and that the plaintiffs would be unable to fund the action without the funding agreement. The Court held that the matter should be left to the trial of the action to determine whether there had been any interference in the proceedings and whether the funding agreement was champertous.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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