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…

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.

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Details

Case: [2012] WASCA 34
Decision Date: 20 FEBRUARY 2012

CaseChat Overview and Summary

Wilden Pty Ltd, the trustee of the Balga Bazaar Unit Trust, was involved in a legal dispute with three individuals, Green, Green, and Green, over the repurchase of units in the trust. The dispute arose from the 2009 orders made by the court in Wilden Pty Ltd v Green [2009] WASCA 38(S), which involved the valuation and payment of units in the trust. The appeal was brought by Wilden Pty Ltd, the trustee, against the three individuals who held units in the trust. The appeal challenged the orders made in the original proceedings, particularly those relating to the repurchase of units and the payment of amounts due to the respondents.

The court was required to decide whether it had jurisdiction to grant the relief requested by the respondents in their application for a stay of the original orders. The respondents sought a stay of the orders pending an application for special leave to appeal to the High Court. The central issue was whether the court could grant a stay when the objective intention of the court orders was undermined by non-compliance with the orders. The court also had to consider whether the order made for liberty to apply generally could be used to grant the relief sought by the respondents.

The court found that the objective intention of the court orders was to ensure that the respondents received payment for their units in the trust. The non-compliance with the orders by the respondents undermined this objective intention. The court held that it did not have jurisdiction to grant the relief requested by the respondents because it would undermine the objective intention of the orders. The court noted that the order made for liberty to apply generally could not be used to grant the relief sought by the respondents. The appeal was dismissed, and the costs of the appeal were awarded to the appellants.

The final orders of the court included dismissing the appeal, awarding costs to the appellants, and staying the original orders pending the determination of any application for special leave to appeal to the High Court. The respondents were given the right to apply for special leave to appeal, and the court retained jurisdiction to grant the relief requested by the respondents if it was satisfied that the objective intention of the orders would not be undermined.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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