Weinert v Clark
[2006] WASCA 253
•10 NOVEMBER 2006
WEINERT & ORS -v- CLARK & ANOR [2006] WASCA 253
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 253 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:144/2006 | 10 NOVEMBER 2006 | |
| Coram: | PULLIN JA | 10/11/06 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | MARJORIE MAY WEINERT WARWICK HAROLD MITFORD ROWELL GILLIAN ELIZABETH ROWELL LEE FRANCIS NASH WESLEY IAN HARLES NASH AMRIT LOUISE WORK KENDRICK GARY ANDREW KENDRICK JANE WATTS GLENN NORMAN WATTS GRAHAM SYDNEY BENSTEAD AURELIA MARIA MAZZOLENI CATHERINE JOY MCGEACHIE RICHARD MITFORD ROWELL JANICE MARY IRVINE CRAIG ROBERTSON LEIGH RICHMOND KEVIN BECKHAM JAN IRVINE RICHARD MELVILLE CLARK THE OWNERS OF ROSNEATH FARM STRATA PLAN 35452 |
Catchwords: | Appeal Application for stay of proceeding in related SAT matter turns on own facts |
Legislation: | Civil Judgements Enforcement Act 2004 (WA), s 15 |
Case References: | Eastland Technology Australia Pty Ltd v Whisson (2003) 28 WAR 308 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : WEINERT & ORS -v- CLARK & ANOR [2006] WASCA 253 CORAM : PULLIN JA HEARD : 10 NOVEMBER 2006 DELIVERED : 10 NOVEMBER 2006 FILE NO/S : CACV 144 of 2006 BETWEEN : MARJORIE MAY WEINERT
- WARWICK HAROLD MITFORD ROWELL
GILLIAN ELIZABETH ROWELL
LEE FRANCIS NASH
WESLEY IAN HARLES NASH
AMRIT LOUISE WORK KENDRICK
GARY ANDREW KENDRICK
JANE WATTS
GLENN NORMAN WATTS
GRAHAM SYDNEY BENSTEAD
AURELIA MARIA MAZZOLENI
CATHERINE JOY MCGEACHIE
RICHARD MITFORD ROWELL
JANICE MARY IRVINE
CRAIG ROBERTSON
LEIGH RICHMOND
KEVIN BECKHAM
JAN IRVINE
Appellants
AND
RICHARD MELVILLE CLARK
First Respondent
- THE OWNERS OF ROSNEATH FARM STRATA PLAN 35452
Second Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : WISBEY DCJ
Citation : CLARK -v- WEINERT & ORS [2006] WADC 129
File No : CIVO 16 of 2006
Catchwords:
Appeal - Application for stay of proceeding in related SAT matter - turns on own facts
Legislation:
Civil Judgements Enforcement Act 2004 (WA), s 15
Result:
Application dismissed
Category: B
Representation:
Counsel:
Appellants : Mr G M G McIntyre SC
First Respondent : Mr D F Beere
Second Respondent : No appearance
Solicitors:
Appellants : Christopher Garvey
First Respondent : Beere & Meyer
Second Respondent : No appearance
Case(s) referred to in judgment(s):
Eastland Technology Australia Pty Ltd v Whisson (2003) 28 WAR 308
Case(s) also cited:
Nil
(Page 4)
1 PULLIN JA: This is an application for a stay of proceedings which are pending in the State Administrative Tribunal ("SAT"). The matter has had to be called on urgently because the proceedings in the SAT are to be heard on Monday, 13 November. In effect the application seeks an order restraining the first respondent to these proceedings, Mr Clark, from proceeding with his application in the SAT on Monday.
2 In relation to a stay application in this Court, the position now is that under the Civil Judgments Enforcement Act 2004 (WA), s 15:
"A person against whom a judgment is given may apply for an order suspending the enforcement of all or any part of the judgment to …
(b) a court that is dealing with an appeal against the judgment"
- and s 15(3) reads that:
"On such an application the court may only make such an order if there are special circumstances that justify doing so."
"• The successful litigant, at first instance, will ordinarily be entitled to enforce the judgment pending the determination of any appeal.
• It is for the applicant for a stay to move the court to a favourable exercise of its discretion.
• It will not do so unless special circumstances are shown justifying the departure from the ordinary rule.
• The central issue will be whether the grant of a stay is perceived to be necessary to preserve the subject matter or the integrity of the litigation, or where refusal of a stay could create practical difficulties in respect of the relief which may be
- granted on appeal. It is often put shortly that it will first and foremost be necessary to establish that without the grant of a stay, the right of appeal, whether upon the grant of leave or special leave or not, will be rendered nugatory.
- • If that can be demonstrated, the stay will generally still be refused unless it can be established that the appeal process, whether upon the grant of leave or special leave or not, has ultimately reasonable prospects of success so as to result in the grant of relief to the appellant.
• If that hurdle can be overcome, the stay may be refused where it appears that the balance of convenience does not lie in favour of the applicant. …"
4 I will start with the requirement that the appeal have reasonable prospects of success. The appeal challenges the decision of Wisbey DCJ. His order was made under s 51 of the Strata Titles Act 1985 (WA), and was that the resolution passed at a general meeting on 14 January 2006 be deemed to be passed as a unanimous resolution.
5 The resolution was one approving the sale of 14 lots of some land which is located somewhere in the south west, and the proposed sale of 14 lots was to be a sale by Mr Clark. The resolution was almost unanimous but was not so because one of the appellants, Marjorie Weinert, voted against it. The chairman declared that it was passed as a special resolution and this then grounded the jurisdiction of the District Court to make the declaration which Wisbey DCJ did.
6 The appeal raises grounds to the effect that the Judge failed to determine whether facilitation agreements (surrendering voting rights to Mr Clark) had been terminated on the basis of a repudiation of the facilitation agreements by Mr Clark, and that as a result the votes that Mr Clark purported to vote in reliance of those facilitation agreements were not validly cast and that, if they had not been counted, then there would not have been a special resolution and therefore there would not have been jurisdiction for the Judge to entertain the application and to make the order that he did. The Judge in his reasons at [12] said that the critical factor was that the resolution sought to do no more than perfect the subdivision that was contemplated and clearly understood by all parties
(Page 6)
- from the outset. Counsel for Mr Clark points to this and submits that the Judge concluded that the facilitation agreements were not repudiated, but I can understand and accept the appellants' contention that such conclusion does not clearly articulate the argument, advanced by the appellants, that there had been a repudiation of the facilitation agreements.
7 If the appeal is to have some reasonable prospects of success it is necessary for the appellants to demonstrate that there is material which suggests that there was a repudiation of the facilitation agreements.
8 As I have said, the dispute concerns the development of land. When land was sold by Mr Clark as part of the subdivision, each purchaser entered into a contract which contained the facilitation agreement, whereby the purchaser gave up the right to vote to Mr Clark. The contract also contained a management plan which required development of the land in a particular way, and it is alleged that Mr Clark has repudiated the agreement by not developing the land in accordance with the plan, and that the appellants have accepted this repudiation, meaning that Mr Clark was no longer entitled to vote pursuant to the facilitation agreements.
9 The appellants submit that, contrary to the situation which developed where Mr Clark had repudiated the contract (and the repudiation had been accepted), he still sought to rely upon and did rely upon the facilitation agreements to vote as he did at the meeting on 14 January 2006.
10 Now that the Judge in the District Court has made his declaration, the next step is for Mr Clark to have a Form 20 signed by the council of the strata body. If the Form 20 is signed, then it will be lodged, and that will permit registration at DOLA of the subdivision plan, which will allow completion of the sale of the 14 lots that Mr Clark has sold and which will mean that those purchasers will probably become registered as the holders of those titles; they will have indefeasible title and the transactions cannot then be undone if that stage is reached.
11 Mr Clark, in the proceedings in SAT, is seeking an order from SAT that the council of the strata body sign the Form 20, which it has refused to do despite the order of Judge Wisbey. If SAT makes the order that the council sign the Form 20 and if it does not, SAT can then execute the Form 20 on behalf of the council. The appellant says that if the appeal has merit and succeeds, then the Form 20 should not be signed. In effect it seeks a stay to stop this whole process until the appeal can be argued.
12 The question is about the merits of the appellants' contention that there has been a repudiation of the agreement. I have been referred to
(Page 7)
- different pieces of material. The whole situation is highly unsatisfactory because an affidavit of Richard Mitford Rowell of 16 October 2006, referred to in submissions, had not been filed with the Court.
13 I was given a copy over the luncheon adjournment and I have had the opportunity now of looking at it. However after lunch I was also provided with two other affidavits which have not been filed in these proceedings; one being an affidavit of Warwick Harold Mitford Rowell sworn 13 April 2006, and the other an affidavit of Jan Irvine of 7 April 2006, which were apparently filed in the District Court proceedings.
14 A reference has been made to some passages in those affidavits with a view to demonstrating that there is some merit in this argument that there was a repudiation of the contracts entered into by Mr Clark and the appellants. I will not refer to all of the documents that I was taken to, but I was told the essence of these complaints are found in the Irvine affidavit in par 15 and par 16 and in the affidavit of Mr Rowell in par 38.
15 Those affidavits reveal that Mr Clark thinks that there should be a change to the management plan; has sold the 14 lots to the Churchlands group which also thinks that there should be a change to the management plan; suggest that attempts have been made to persuade the appellants to agree to a change in the management plan and suggest that there may be proceedings on foot with a view to achieving that result, either directly or indirectly.
16 In my opinion, none of that supports the contention that Mr Clark has either failed to comply with a promise contained in the contract, that is, that he has breached a term of the contracts he has with the appellants which are fundamental to the contracts, or that he has anticipated some obligation that he must perform in the future and indicated that he would not comply with the obligation contained in the contracts.
17 I have not had time to look at the contracts in detail, but I was told by counsel for the appellants that the contracts contain a provision that indicates that the parties are bound to comply with the management agreement. There seems to be no argument about that. I will therefore assume that the contract does contain such a provision. However, there is nothing that indicates that there is a failure by Mr Clark to comply with it, and nothing to show any statements made by Mr Clark which would amount to a repudiation.
(Page 8)
18 If the appellant cannot point to any information that there was a repudiation, then in my opinion there are not reasonable prospects of success on the appeal sufficient to justify the grant of a stay.
19 Mr Clark also complained that there had been no undertaking as to damages, which would be necessary in circumstances where the injustice that might be suffered by the party who succeeded in the court below could be overcome by payment of some money.
20 What was necessary in this case was an undertaking as to damages. Only at the last moment has an undertaking been proffered. It has been proffered by Mr Benstead, who is one of the appellants. He says that the appellants undertake to the Court that they will pay to any party restrained or affected by the restraints imposed by the stay, but there is no evidence before me that the other appellants have authorised Mr Benstead to give that undertaking, and on that basis the undertaking is inadequate.
21 I agree with the appellant, however, that if that was the only problem, it could be overcome by making the order conditional upon all of the appellants giving the undertaking as to damages.
22 I accept that there is a real risk that this Court's decision will be rendered nugatory because, if a stay is not granted, and the orders anticipated in the State Administrative Tribunal are made on Monday or soon thereafter, then it is likely that the Form 20 will be lodged, the registration will occur, the titles will issue and Churchlands will become the registered proprietor of the land it has purchased.
23 Just because the decision might be rendered nugatory, however, is not justification for the grant of a stay if in fact the appeal has no reasonable prospects of success. At the moment, as I say, I cannot see that there are reasonable prospects of success in relation to the appeal.
24 There is then the other factor in considering whether to grant a stay, namely the balance of convenience and the interests of the parties. Mr Clark has provided evidence that indicates financial prejudice if he is not able to proceed with the proceedings in the SAT on Monday. That might be partly ameliorated by the undertaking as to damages if it was given by all the appellants.
25 The primary reason for refusing the application is the fact that I do not see reasonable prospects of success in relation to this appeal and for that reason I would dismiss the application.
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