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Wealthsure Pty Limited v Selig

Wealthsure Pty Limited v Selig

Case [2013] FCA 628 24 June 2013

Civil Litigation & Procedure

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FEDERAL COURT OF AUSTRALIA
Wealthsure Pty Limited v Selig [2013] FCA 628

Citation: Wealthsure Pty Limited v Selig [2013] FCA 628

Parties: WEALTHSURE PTY LIMITED ABN 93 097 405 108 and DAVID BERTRAM v RONALD SELIG AND JANNA SELIG, RICHARD WILLIAM SPENCER, SILVANA PEROVICH, MARK RICHARD NORTON, PETER MAURICE TOWNLEY, NEOVEST LIMITED (IN LIQUIDATION) ACN 104 915 906, NORTON CAPITAL PTY LIMITED (IN LIQUIDATION) ACN 086 207 169, DANIEL GEOFFREY LILLEY, DAMIEN BERNARD GREER, ROBERT NOEL GALLAGHER, STEPHEN JAMES DICKENS and MICHAEL JOSEPH CROUCH

File number: SAD 97 of 2013

Judge: BESANKO J

Date of judgment: 24 June 2013

Catchwords:
PRACTICE AND PROCEDURE – application by Wealthsure Pty Ltd – where primary judge ordered judgment against Wealthsure Pty Ltd and David Bertram – where Wealthsure Pty Ltd seeks leave to pursue the appeal against certain parties, stay orders 2, 8, 11 and 14 made by the primary judge, set aside a statutory demand issued pursuant to s 459E of the Corporations Act 2001 (Cth) and expedite the appeal to the earliest convenient time – whether the grounds of appeal are arguable – whether a stay of the judgment should be granted – whether the appeal will be rendered nugatory if a stay is not granted – where judgment creditors have significant liabilities – whether there is significant prejudice to the judgment creditors – where Wealthsure Pty Ltd insured against liability to judgment creditors

Held: The orders of the primary judge will be stayed on Wealthsure Pty Ltd paying the sum of $500,000 into an interest bearing account agreed upon by the parties or providing an appropriate bank guarantee for $525,000. An order be made nunc pro tunc giving leave to Wealthsure Pty Ltd to pursue the appeal against the second respondent, third respondent, sixth respondent and seventh respondent limited to the prosecution of the appeal up to and including the entry of judgment on the appeal. Parties to be heard as to the terms of the orders

Legislation: Australian Securities and Investments Commission Act 2001 (Cth)
Corporations Act 2001 (Cth) ss 459F, 459G, 459J, 562, 1041H, 1041I
Corporations Regulations 2001 (Cth)
Federal Court Rules 2011 rr 2.42, 25, 36.08(2), 36.10

Cases cited: Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685
Barker v Commonwealth Bank of Australia [2012] FCA 1076
Calderbank v Calderbank [1975] 3 All ER 333
Citrus Queensland Pty Ltd (ACN 110 855 359) v Sunstate Orchards Pty Ltd (ACN 095 659 733) [2008] FCA 1867
Cook’s Construction Proprietary Limited v Stork Food Systems Australasia Pty Ltd [2008] QCA 322
Federal Commissioner of Taxation v Myer Emporium Ltd (1986) 160 CLR 220
Girard v Commercial Standard Insce Co (1944) 152 P 2d 509
Powerflex Services Pty Ltd v Data Access Corporation (1996) 67 FCR 65
Selig v Wealthsure Pty Ltd [2013] FCA 348
Sevenhill Holdings Pty Ltd v Musovic [1992] FCA 372
TCN Channel 9 Pty Ltd v Antoniadis (No 2) (1999) 48 NSWLR 381

Date of hearing: 13 June 2013

Date of last submissions: 14 June…

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 Wealthsure Pty Limited v Selig

Details

AGLC: Wealthsure Pty Limited v Selig [2013] FCA 628
Case: [2013] FCA 628
Decision Date: 24 June 2013

CaseChat Overview and Summary

Wealthsure Pty Limited and David Bertram appealed against a decision by the primary judge, who ordered judgment against them. Wealthsure sought leave to pursue the appeal against certain parties, to stay orders made by the primary judge, to set aside a statutory demand issued under the Corporations Act, and to expedite the appeal. The court needed to determine whether the grounds of appeal were arguable, whether a stay of the judgment should be granted, and whether the appeal would become ineffective if a stay was not granted. The court also needed to consider whether there was significant prejudice to the judgment creditors and whether Wealthsure had insured against liability to the judgment creditors.

The court found that the orders of the primary judge would be stayed on Wealthsure paying $500,000 into an interest-bearing account or providing a bank guarantee for $525,000. An order would be made to give Wealthsure leave to pursue the appeal against specific respondents, limited to the prosecution of the appeal up to and including the entry of judgment on the appeal. The parties would be heard regarding the terms of the orders to be made.

The court concluded that an order in line with paragraph 1 of the interlocutory application should be made, as nothing said by the opposing counsel or the written submissions persuaded the court otherwise. The court would hear the parties regarding the terms of the orders to be made.

The court ordered that the parties be heard regarding the terms of the orders to be made, with entry of orders dealt with in Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The parties be heard as to the terms of the orders to be made.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I think an order in terms of paragraph 1 of the interlocutory application should be made. Nothing said by Mr Cliff, who appeared on behalf of Neovest and its liquidator, or the written submissions persuaded me to the contrary.Conclusion I will hear the parties as to the terms of the orders to be made.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Wealthsure Pty Limited v Selig [2013] FCA 628

Most Recent Citation

Selig v Wealthsure Pty Ltd [2013] FCA 685

Cases citing this decision · 5 of 5 shown

Mitolo Wines Aust Pty Ltd v Vito Mitolo & Son Pty Ltd (No 3)
[2019] FCA 2116 Para 19

…e possible insolvency or bankruptcy of an appellant is not ordinarily a reason of itself to grant a stay. They referred to Wealthsure Pty Ltd v Selig [2013] FCA 628 at [24] in support of this submission.…
Gujarat NRE Coke Limited v Coeclerici Asia (Pte) Ltd
[2013] FCA 918 Para 22

…ole or part of the judgment debt to the respondent ( Andrews v John Fairfax & Sons [1979] 2 NSWLR 184) or into court ( Wealthsure Pty Limited v Selig [2013] FCA 628). The issues on the appeal…
Wealthsure Pty Limited v Selig (No 2)
[2013] FCA 847 Para 2

…My reasons for granting the stay are set out in Wealthsure Pty Limited v Selig [2013] FCA 628. An application for leave to appeal from the orders was refused: Selig v Wealthsure Pty Limited [2013] FCA 685.…
Deputy Commissioner of Taxation v Eskdale South Cattle Company Pty Ltd, in the matter of Eskdale South Cattle Company Pty Ltd (No 2)
[2013] FCA 750 Para 6

…grant a stay of orders in appropriate circumstances. Relevant principles were considered by Besanko J recently in Wealthsure Pty Limited v Selig [2013] FCA 628 where his Honour observed: [10] The Court must first be satisfied that the grounds of appeal are arguable. In Alexander v Cambridge Credit Corporation Lt…
Selig v Wealthsure Pty Ltd
[2013] FCA 685 Para 6

…o an order relating to the investment of the sum of $500,000. The reasons for those orders were published on 24 June 2013: Wealthsure Pty Ltd v Selig [2013] FCA 628.…

View all 5 citing cases →

Cases cited in this decision · 11 of 11 shown

Selig v Wealthsure Pty Ltd
[2013] FCA 348 Para 8

…The proceeding before the trial judge was a complex one and his Honour’s reasons for judgment are 250 pages: Selig v Wealthsure Pty Ltd [2013] FCA 348. THE APPLICATION FOR A STAY…
Commonwealth Bank of Australia v Barker
[2012] FCA 1076 Para 9

…application for a stay are not in doubt. I made reference to some of the principles in my recent decision in Barker v Commonwealth Bank of Australia [2012] FCA 1076. The grounds of appeal…
Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd
[2008] FCA 1867 Para 12

…In Citrus Queensland Pty Ltd (ACN 110 855 359) v Sunstate Orchards Pty Ltd (ACN 095 659 733) [2008] FCA 1867 Greenwood J said that the assessment of the prospects of success of an appeal by reference to such a test reflected a low threshold of arguability (at [40]). His Honour referred to the following observation…
Cook's Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd
[2008] QCA 322 Para 2

…liquidation is not ordinarily a reason of itself to grant a stay: Cook’s Construction Proprietary Limited v Stork Food Systems Australasia Pty Ltd [2008] QCA 322 at [16] – [17] per Keane JA (as his Honour then was); Citrus Queensland Pty Ltd (ACN 110 855 359) v Sunstate Orchards Pty Ltd (ACN 095 659 733) at [41]…
Lumbers v W Cook Builders Pty Ltd (in liq)
[2008] HCA 27 Para 1

…As I said in Barker v Commonwealth Bank of Australia at [21], the prima facie position is that the respondent to an application for a stay is entitled to enforce his judgment. However, as Alexander v Cambridge Credit and Powerflex Services Pty Ltd v Data Access Corporation (1996) 67 FCR 65 make clea…
TCN Channel 9 Pty Ltd v Antoniadis (No 2)
[1999] NSWCA 104 Para 1

…Myer Emporium Ltd (1986) 160 CLR 220 at 222 – 223 per Dawson J; Alexander v Cambridge Credit at 695; TCN Channel 9 Pty Ltd v Antoniadis (No 2) (1999) 48 NSWLR 381. It might be said that the absence of a stay may render an appeal nugatory because the appellant is unable to pursue the appeal or because the appellant, e…
Powerflex Services Pty Ltd v Data Access Corporation
[1996] FCA 460

…Federal Commissioner of Taxation v Myer Emporium Ltd (1986) 160 CLR 220 Girard v Commercial Standard Insce Co (1944) 152 P 2d 509 Powerflex Services Pty Ltd v Data Access Corporation (1996) 67 FCR 65 Selig v Wealthsure Pty Ltd [2013] FCA 348 Sevenhill Holdings Pty Ltd v Musovic [1992] FCA 372 TCN Channel 9 Pty Ltd v Antoniadis (No 2) (1999) 48 NSWLR 381 Dat…
Sevenhill Holdings Pty Ltd v Musovic
[1992] FCA 372 Para 12

…arguability (at [40]). His Honour referred to the following observation by French J (as his Honour then was) in Sevenhill Holdings Pty Ltd v Musovic [1992] FCA 372: In saying so, I accept that the very findings which underpin [it] are under challenge in an appeal which is not frivolous, that is to say, an appeal…
Federal Commissioner of Taxation v Myer Emporium Ltd
[1987] HCA 18 Para 1

…One circumstance which is accorded substantial weight in favour of a stay is where an appeal will be rendered nugatory if a stay is not granted: Federal Commissioner of Taxation v Myer Emporium Ltd (1986) 160 CLR 220 at 222 – 223 per Dawson J; Alexander v Cambridge Credit at 695; TCN Channel 9 Pty Ltd v Antoniadis (No 2) (1999) 48 NSWLR 381. It might be sa…
Federal Commissioner of Taxation v Myer Emporium Ltd (No 1)
[1986] HCA 13 Para 1

…t in favour of a stay is where an appeal will be rendered nugatory if a stay is not granted: Federal Commissioner of Taxation v Myer Emporium Ltd (1986) 160 CLR 220 at 222 – 223 per Dawson J; Alexander v Cambridge Credit at 695; TCN Channel 9 Pty Ltd v Antoniadis (No 2) (1999) 48 NSWLR 381. It might be said that the…
Alexander v Cambridge Credit Corporation Ltd
(1987) 9 NSWLR 310 Para 1

…k of Australia at [21], the prima facie position is that the respondent to an application for a stay is entitled to enforce his judgment. However, as Alexander v Cambridge Credit and Powerflex Services Pty Ltd v Data Access Corporation (1996) 67 FCR 65 make clear, it is not necessary for an applicant for a stay to demonstrate that there are “special” circumstances before a stay will be gra…

Legislation cited in this decision · 5

Corporations Act 2001 (Cth)
1041H, 1041I, 459F, 459G, 459J, 562 7 mentions (from Para 2)
Federal Court Rules 2011 (Cth)
2.42, 25, 36.08(2), 36.10 5 mentions (from Para 6)
Corporations Regulations 2001 (Cth)
2 mentions (from Para 13)
Australian Securities and Investments Commission Act 2001 (Cth)
1 mention (from Para 17)
Bankruptcy Act 1966 (Cth)
1 mention (from Para 17)

Citation:		Wealthsure Pty Limited v Selig [2013] FCA 628
Parties:		WEALTHSURE PTY LIMITED ABN 93 097 405 108 and DAVID BERTRAM v RONALD SELIG AND JANNA SELIG, RICHARD WILLIAM SPENCER, SILVANA PEROVICH, MARK RICHARD NORTON, PETER MAURICE TOWNLEY, NEOVEST LIMITED (IN LIQUIDATION) ACN 104 915 906, NORTON CAPITAL PTY LIMITED (IN LIQUIDATION) ACN 086 207 169, DANIEL GEOFFREY LILLEY, DAMIEN BERNARD GREER, ROBERT NOEL GALLAGHER, STEPHEN JAMES DICKENS and MICHAEL JOSEPH CROUCH
File number:		SAD 97 of 2013
Judge:		BESANKO J
Date of judgment:		24 June 2013
Catchwords:		PRACTICE AND PROCEDURE – application by Wealthsure Pty Ltd – where primary judge ordered judgment against Wealthsure Pty Ltd and David Bertram – where Wealthsure Pty Ltd seeks leave to pursue the appeal against certain parties, stay orders 2, 8, 11 and 14 made by the primary judge, set aside a statutory demand issued pursuant to s 459E of the Corporations Act 2001 (Cth) and expedite the appeal to the earliest convenient time – whether the grounds of appeal are arguable – whether a stay of the judgment should be granted – whether the appeal will be rendered nugatory if a stay is not granted – where judgment creditors have significant liabilities – whether there is significant prejudice to the judgment creditors – where Wealthsure Pty Ltd insured against liability to judgment creditors Held: The orders of the primary judge will be stayed on Wealthsure Pty Ltd paying the sum of $500,000 into an interest bearing account agreed upon by the parties or providing an appropriate bank guarantee for $525,000. An order be made nunc pro tunc giving leave to Wealthsure Pty Ltd to pursue the appeal against the second respondent, third respondent, sixth respondent and seventh respondent limited to the prosecution of the appeal up to and including the entry of judgment on the appeal. Parties to be heard as to the terms of the orders
Legislation:		Australian Securities and Investments Commission Act 2001 (Cth) Corporations Act 2001 (Cth) ss 459F, 459G, 459J, 562, 1041H, 1041I Corporations Regulations 2001 (Cth) Federal Court Rules 2011 rr 2.42, 25, 36.08(2), 36.10
Cases cited:		Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 Barker v Commonwealth Bank of Australia [2012] FCA 1076 Calderbank v Calderbank [1975] 3 All ER 333 Citrus Queensland Pty Ltd (ACN 110 855 359) v Sunstate Orchards Pty Ltd (ACN 095 659 733) [2008] FCA 1867 Cook’s Construction Proprietary Limited v Stork Food Systems Australasia Pty Ltd [2008] QCA 322 Federal Commissioner of Taxation v Myer Emporium Ltd (1986) 160 CLR 220 Girard v Commercial Standard Insce Co (1944) 152 P 2d 509 Powerflex Services Pty Ltd v Data Access Corporation (1996) 67 FCR 65 Selig v Wealthsure Pty Ltd [2013] FCA 348 Sevenhill Holdings Pty Ltd v Musovic [1992] FCA 372 TCN Channel 9 Pty Ltd v Antoniadis (No 2) (1999) 48 NSWLR 381
Date of hearing:	13 June 2013
Date of last submissions:	14 June…