Wilden Pty Ltd v Green [No 3] - [2016] WASCA 74

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: WILDEN PTY LTD -v- GREEN [No 3] [2016] WASCA 74

CORAM: McLURE P
NEWNES JA
MURPHY JA

HEARD: 22 MARCH 2016

DELIVERED : 4 MAY 2016

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
SHARYN LEE GREEN
First-named Third Respondent
GRAEME WILLIAM GREEN
Second-named Third Respondent
JULIE ANNE GREEN
Third-named Third Respondent
WILLIAM JOSEPH GREEN
Fourth-named Third Respondent
NORMA GLENYCE GREEN
Fifth-named 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:

Civil judgment - Application to vary final orders - Power to vary - Whether post-judgment interest payable on judgment sum - Section 8 of Civil Judgment Enforcement Act 2005 (WA) - Claim of breach of trust

Legislation:

Civil Judgments Enforcement Act 2005 (WA)
Supreme Court Act 1935 (WA)
Trustees Act 1962 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

First Appellant          :    Mr N D C Dillon
Second Appellant          :    Mr N D C Dillon
Third Appellant          :    Mr N D C Dillon
Fourth Appellant          :    In person
Fifth Appellant          :    Mr N D C Dillon
Sixth Appellant          :    Mr N D C Dillon
Seventh Appellant          :    Mr N D C Dillon
First Respondent          :    Mr M L Bennett
Second Respondent          :    Mr M L Bennett
First-named Third Respondent   :    Mr M L Bennett
Second-named Third Respondent: Mr M L Bennett
Third-named Third Respondent :    Mr M L Bennett
Fourth-named Third Respondent :    Mr M L Bennett
Fifth-named 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-named Third Respondent   :    Bennett & Co
Second-named Third Respondent: Bennett & Co
Third-named Third Respondent :    Bennett & Co
Fourth-named Third Respondent :    Bennett & Co
Fifth-named Third Respondent :    Bennett & Co

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: [2016] WASCA 74
Decision Date: 4 MAY 2016

CaseChat Overview and Summary

Wilden Pty Ltd brought an application to the Supreme Court of Western Australia against Green, seeking to vary the final orders made in a previous proceeding. The previous decision had determined that Green was liable to Wilden Pty Ltd for breach of trust. Wilden Pty Ltd applied to have post-judgment interest added to the judgment sum. The court was required to determine whether it had the power to vary the final orders to include post-judgment interest and whether the relevant statutory provisions allowed for this variation.

The court considered whether the power to vary final orders under the Supreme Court Act 1935 (WA) included the ability to add post-judgment interest. It also examined the provisions of section 8 of the Civil Judgment Enforcement Act 2005 (WA), which dealt with the enforcement of judgments. The court concluded that the power to vary final orders did not extend to adding post-judgment interest, as this was a matter of judgment enforcement rather than a variation of the judgment itself. Consequently, the application to vary the final orders to include post-judgment interest was dismissed.

The court's reasoning was grounded in the distinction between the power to vary final orders and the enforcement of judgments. The court held that post-judgment interest was a matter to be determined in the context of enforcing the judgment, not varying it. Therefore, the application to add post-judgment interest to the judgment sum was not permissible under the relevant statutory provisions. The court confirmed that the final orders remained as previously determined, with no additional interest being added.

Orders