Welldog Pty Ltd v Prox Pty Ltd [No 2]

[2017] WASCA 134

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   WELLDOG PTY LTD -v- PROX PTY LTD [No 2] [2017] WASCA 134

CORAM:   MITCHELL JA

HEARD:   ON THE PAPERS

DELIVERED          :   18 JULY 2017

FILE NO/S:   CACV 27 of 2017

BETWEEN:   WELLDOG PTY LTD

First Appellant

GAS SENSING TECHNOLOGY CORPORATION
Second Appellant

THE BLUE SKY GROUP (as representative of the shareholders of the second plaintiff)
Third Appellant

AND

PROX PTY LTD
Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :KENNETH MARTIN J

File No  :CIV 2859 of 2016

Catchwords:

Application in an appeal - For summary dismissal of appeal - Turns on its own facts

Legislation:

Supreme Court (Court of Appeal) Rules 2005 (WA), r 32(2)(b), r 43(2)(g)

Result:

Appeal dismissed

Category:    B

Representation:

Counsel:

First Appellant               :     No appearance

Second Appellant          :     No appearance

Third Appellant             :     No appearance

Respondent:     No appearance

Solicitors:

First Appellant               :     Squire Patton Boggs

Second Appellant          :     No appearance

Third Appellant             :     No appearance

Respondent:     HWL Ebsworth Lawyers

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

Welldog Pty Ltd v Prox Pty Ltd [2017] WASCA 62

1. MITCHELL JA:  On 3 March 2017, the primary judge granted the appellants an interlocutory injunction.  The injunction restrained the respondent, Prox Pty Ltd, from taking any step in the exercise of rights under specified transaction documents.  Those transaction documents concerned finance arrangements between Prox and the first appellant, Welldog Pty Ltd.  The appellants sought the injunction in anticipation of Prox exercising rights to appoint receivers and managers in respect of Welldog's assets. 

2. The injunction granted by the primary judge operated until 4:00 pm on 17 March 2017.  The primary judge's orders also provided for the injunction to continue until the trial of the primary action, or further order, if Welldog paid specified amounts into court, or secured those amounts under an arrangement acceptable to Prox.  The amounts ($US1,944,167.50 and $AUD342,487.20) reflected Welldog's claimed indebtedness to Prox.

3. On 16 March 2017, Welldog appealed against the orders made on 3 March 2017.  Welldog contended that the primary judge was in error in making the continuation of the injunction conditional upon payment of the amount of its indebtedness into court. 

4. By an application in the appeal also filed on 16 March 2017, the appellants relevantly applied for an order continuing the interlocutory injunction, without the condition of payment into court, until the hearing of the appeal.  That application in an appeal was heard on 17 March 2017 and dismissed by this court on 20 March 2017.  The application in an appeal was dismissed on the basis that the primary judge was correct to refuse to extend the interlocutory injunction beyond 17 March 2017 unless the amount of the indebtedness was paid into court or secured under an arrangement acceptable to Prox.[1]  By reaching that conclusion as a basis for dismissing the application in an appeal, the court effectively determined the issues raised by the appeal.

   [1] Welldog Pty Ltd v Prox Pty Ltd [2017] WASCA 62 [39].

5. Following that determination, Welldog was placed into administration, receivers and managers were appointed over its property and Welldog was placed into liquidation.  The second and third appellants have discontinued their appeal.  While the liquidators have indicated that they have no objection to the appeal being dismissed, they have not taken steps to bring Welldog's appeal to an end.

6. On 2 June 2017, Prox applied for an order that Welldog's appeal be dismissed under r 43(2)(g) of the Supreme Court (Court of Appeal) Rules 2005 (WA). The Court of Appeal Registrar has programmed that application for determination on the papers. Welldog has not taken any steps to oppose the application.

7. Prox submits that, in the circumstances, none of the grounds of appeal has a reasonable prospect of success, so that the appeal should be dismissed under r 42(2)(g)(i) of the Rules.  A potential difficulty with that submission is that, although it has provided a draft, Welldog has not actually filed an Appellant's Case which formally sets out its grounds of appeal.

8. In my view, r 42(2)(g)(ii) of the Rules provides for a preferable basis for dismissing Welldog's appeal, on the ground that Welldog has not obeyed r 32(2)(b) of the Rules. Rule 32(2)(b) required Welldog's Appellant's Case to be filed within 35 days after the appeal notice was filed on 16 March 2017. There is nothing to be gained by now extending the time for filing an Appellant's Case in circumstances where:

   1.Welldog is in liquidation;

   2.Welldog's liquidators do not oppose the dismissal of the appeal and do not propose to arrange for Welldog to prosecute the appeal;

   3.the expiry of the interlocutory injunction, and the appointment of receivers and managers which it restrained, have rendered the appeal at least largely moot; and

   4.the court has concluded that the primary judge's decision was correct.

   In all these circumstances, it is appropriate to dismiss the appeal under r 42(2)(g)(ii) of the Rules.

9. For these reasons, I order that:

   1. The appeal is dismissed.

   2. The first appellant pay the respondent's costs of the application in an appeal filed on 2 June 2017, and the appeal, to be taxed if not agreed.