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Treacy v Rylestone Pty Ltd

Treacy v Rylestone Pty Ltd

Case [2002] WASC 178 4 July 2002

Jurisdiction

Abuse of Process

Stay of Proceedings

Champerty and Maintenance

Civil Litigation & Procedure

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

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASC 178
Case No:	CIV:2189/2001	Heard:	28 & 29 MAY 2002
Coram:	SCOTT J	Delivered:	4/07/02
No of pages:	29	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	A
PDF Version

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…

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 Treacy v Rylestone Pty Ltd

Details

AGLC: 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