Wilden Pty Ltd v Green [No 2] - [2012] WASCA 34

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: WILDEN PTY LTD -v- GREEN [No 2] [2012] WASCA 34

CORAM: McLURE P
PULLIN JA
NEWNES JA

HEARD: 24 JANUARY 2012

DELIVERED : 20 FEBRUARY 2012

FILE NO/S: CACV 101 of 2005

BETWEEN: WILDEN PTY LTD (ACN 009 143 033)
First Appellant
MAGENTA NOMINEES PTY LTD (ACN 009 340 158)
Second Appellant
TACE PTY LTD (ACN 009 204 915)
Third Appellant
SYDNEY JAMES CHESSON
Fourth Appellant
BERT LEONARD DENBOER
Fifth Appellant
CALLAO PTY LTD (ACN 008 867 552)
Sixth Appellant
BENRONE PTY LTD (ACN 008 931 084)
Seventh Appellant
AND
GRAEME WILLIAM GREEN
First Respondent
W J GREEN & CO (1984) PTY LTD (ACN 008 851 867)
Second Respondent
SHARON LEE GREEN
First Third Respondent
GRAEME WILLIAM GREEN
Second Third Respondent
JULIE ANNE GREEN
Third Third Respondent
WILLIAM JOSEPH GREEN
Fourth Third Respondent
NORMA GLENYCE GREEN
Fifth Third Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :HASLUCK J
Citation  :GREEN -v- WILDEN PTY LTD [2005] WASC 83
File No  :CIV 3049 of 1991, CIV 3050 of 1991, CIV 2965 of 1990, CIV 2966 of 1990
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :HASLUCK J
Citation  :GREEN -v- WILDEN PTY LTD [2005] WASC 83 (S)
File No  :CIV 3049 of 1991, CIV 3050 of 1991, CIV 2965 of 1990, CIV 2966 of 1990

Catchwords:

Appeal - Application for stay - Objective intention of court orders undermined by non-compliance - Order made for liberty to apply generally - Whether court has jurisdiction to grant the relief

Legislation:

Nil

Result:

Stay granted

Category: B

Representation:

Counsel:

First Appellant              :     Mr D J Garnsworthy
Second Appellant          :     Mr D J Garnsworthy
Third Appellant            :     Mr D J Garnsworthy
Fourth Appellant           :     In person
Fifth Appellant             :     Mr D J Garnsworthy
Sixth Appellant             :     Mr D J Garnsworthy
Seventh Appellant         :     Mr D J Garnsworthy
First Respondent           :     Mr M L Bennett
Second Respondent       :     Mr M L Bennett
First Third Respondent   :     Mr M L Bennett
Second Third Respondent    :     Mr M L Bennett
Third Third Respondent :     Mr M L Bennett
Fourth Third Respondent :     Mr M L Bennett
Fifth Third Respondent :     Mr M L Bennett

Solicitors:

First Appellant              :     AustAsia Legal Pty Ltd
Second Appellant          :     AustAsia Legal Pty Ltd
Third Appellant            :     AustAsia Legal Pty Ltd
Fourth Appellant           :     In person
Fifth Appellant             :     AustAsia Legal Pty Ltd
Sixth Appellant             :     AustAsia Legal Pty Ltd
Seventh Appellant         :     AustAsia Legal Pty Ltd
First Respondent           :     Bennett & Co
Second Respondent       :     Bennett & Co
First Third Respondent   :     Bennett & Co
Second Third Respondent    :     Bennett & Co
Third Third Respondent :     Bennett & Co
Fourth Third Respondent :     Bennett & Co
Fifth Third Respondent :     Bennett & Co

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

Cameron v Renouf [2008] WASC 60
Wilden Pty Ltd v Green [2009] WASCA 38(S)

JUDGMENT OF THE COURT: On 6 July 2009 this court made orders in these proceedings: Wilden Pty Ltd v Green [2009] WASCA 38(S).
The orders relevantly provided:
4.The determination of current repurchase value made by each valuer is valid.
5.The respondents are entitled to be paid for their units the amount determined by reference to the relevant applicable current repurchase value (less any deductions for stamp duty and other disbursements properly incurred by the relevant trustee upon or in respect of the repurchase).
6.The respondents are entitled to be paid:
(a)the amount (if any) paid or credited as having been paid by way of income distribution to holders of units in the trust in which they hold units from the date of the repurchase request until the cancellation or transfer of the units to or at the direction of the trustee; and
(b)interest on the amounts referred to in (a) accruing at the rate the funds would have earned if invested in an interest-bearing deposit with the banker to the trust.
7.If upon the determination of the amounts owing under orders 2(b) and (c), 5 and 6:
(a)a net amount is payable to a respondent(s), then on payment of the net amount the respondent(s) shall transfer their units to or at the direction of the relevant trustee;
(b)a net amount is payable by a respondent(s), they shall forthwith transfer their units to or at the direction of the relevant trustee.
8.The trustee of the Balga Bazaar Unit Trust (the Balga Trust) shall:
(a)ascertain the funds received by Wilden Pty Ltd (Wilden) as trustee of the Balga Trust for the purported issue of units referred to in orders 4.3 and 4.4 of the judgment of Hasluck J on 9 August 2005;
(b)ascertain the moneys paid or credited as having been paid by way of capital distribution or income distribution to the purported holders of the units referred to from the date such units were purportedly issued until the date of these orders; and
(c)thereafter set off against the sum found to have been received by Wilden under order 8(a), the funds found to have been credited or paid by way of capital distribution or income distribution to the purported unit holders under order 8(b) (the net sum).
9.The net sum is payable to the relevant person(s) within 10 days from the date of its determination under order 8.
10.If the parties are unable to agree upon the amounts payable by the respondents to the appellants or by the appellants to the respondents or by the appellants to other appellants as the case may be pursuant to orders 5, 6 and 8, then:
(a)leave be granted to the appellants and the respondents (or any of them), to apply to a single judge of this court for an order that there be mediation with respect to such matters as the parties are unable to agree; and that
(b)in the absence of agreement (either before or consequent upon mediation) an account be taken before a registrar of this court for the purpose of determining those matters.
11.Payment of any amount payable by any of the appellants (defendants) to any of the respondents (plaintiffs) determined in accordance with the foregoing orders be stayed until the appellants' costs of the appeal and of the action have been taxed or agreed, and the taxed or agreed costs set off (as the appellants see fit) against any amount payable to any respondent, so that only the balance (if any) after such set off will be payable.
…
13.The first and second plaintiffs do pay to the defendants the costs of the action and the counterclaim to be taxed as a single bill. The third plaintiffs shall be jointly and severally liable to the defendants for 25% of the said taxed costs. The defendants are entitled to:
(a)a certificate for second senior counsel;
(b)all reserved costs;
(c)transcript fees;
(d)expert witness fees; and
(e)the costs of preparing the defence and counterclaim, discovery and inspection, and getting up the case for trial without regard to any limit imposed by any applicable scale.
14.The first and second respondents do pay to the appellants 80% of the costs of the appeal to be taxed as a single bill. The third respondent shall be jointly and severally liable to the appellants for 25% of the said taxed costs. The appellants are entitled to a certificate for second counsel.
…
16.In the event the respondents apply within time for special leave to appeal to the High Court from these orders, there be a stay of the orders until the determination of the special leave application.
17.There be liberty to apply generally.
On 9 November 2011 the coram heard an application by the respondents under the liberty to apply provision. The application was prompted by the fact that the appellants (or some of them) had applied to wind up or bankrupt the respondents (or some of them) for their failure to pay the taxed costs of the appeal and of an unsuccessful special leave application to the High Court. An issue in the insolvency proceedings was the effect of the stay the subject of Order 11.
Unfortunately the respondents had not given proper attention to the nature or terms of the relief which they sought. The application was adjourned to enable the respondents to put the parties and the court on notice of the relief sought. By application dated 15 November 2011 the respondents seek orders in the following terms:
Pursuant to the liberty to apply provision contained in Order 17 of the orders of the Court of Appeal dated 6 July 2009 it be ordered that payment by the respondents of the costs ordered to be paid pursuant to Orders 13 and 14 of the Court of Appeal be stayed:-
1.Until the amounts payable determined in accordance with Orders 5 ‑ 10 or ascertained or otherwise agreed or until further order by this Court.
2.The costs of this motion be determined by the Court.
After written submissions had been filed on behalf of all appellants, the fourth appellant, Mr S Chesson gave notice of intention to act for himself. He appeared and made submissions at the hearing on 24 January 2012.
The evidence establishes that the trustee appellants (Wilden Pty Ltd, Magenta Nominees Pty Ltd and Tace Pty Ltd) had not undertaken an assessment of the amounts payable to the respondents pursuant to their entitlements the subject of Orders 5 ‑ 9. The prospect of the parties being unable to agree upon the relevant amounts was recognised in Order 10. The first respondent deposed in his affidavit of 15 November 2011 that:
The appellants from the time the High Court dismissed the respondents application for special leave to appeal have not corresponded with any of the respondents nor informed any of the respondents regarding any step in the determination of the amounts owed to the respondents as stipulated in Orders 5 ‑ 10 of the Orders (par 28(a)).
On an objective construction of the orders, it is clear that the stay in Order 11 is predicated on the assumption that the trustee appellants would act within a reasonable time to identify the amounts payable to the respondents in accordance with Orders 5 ‑ 10.
As appears from the affidavit of Mr Chesson sworn on 16 December 2011 (par 8.1.3), he mistakenly construed Order 11 as staying Orders 1 ‑ 10 until such time as the costs in the appeal and in the trial were determined. The same misunderstanding is echoed in the appellants' written submissions (par 11.2). The stay in Order 11 does not in terms or effect relieve the trustee appellants of their duties to calculate the moneys owed to the respondents the subject of Orders 5 ‑ 10. The stay is confined to payment of those entitlements.
Thus a situation has arisen in which the objectively determined intention of the court orders has been undermined by the failure of the trustee appellants to act in a timely fashion to determine the amounts owed to the relevant respondents. As a result, the respondents are prejudiced by the stay in a way that was never intended. The court ordered liberty to apply generally because of the obvious potential for difficulties in implementing and giving effect to the relief. That is what has occurred in this case. In those circumstances, the court has jurisdiction to grant the relief sought by the respondents: Cameron v Renouf [2008] WASC 60 [28] ‑ [32].
There being jurisdiction, it is appropriate in all the circumstances to order that:
Payment by the respondents of the costs ordered to be paid pursuant to Orders 13 and 14 made by the Court of Appeal on 6 July 2009 be stayed until the amounts payable determined in accordance with Orders 5 ‑ 10 are ascertained or otherwise agreed or until further order of this court.
We would hear from the parties on the costs of the application.