WILLIAMS v Nicoski - [2003] WASC 224

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: WILLIAMS -v- NICOSKI & ANOR [2003] WASC 224

CORAM: MASTER NEWNES

HEARD: 6 NOVEMBER 2003

DELIVERED : 12 NOVEMBER 2003

FILE NO/S: CIV 1404 of 1999

BETWEEN: TROY WILLIAMS
Plaintiff
AND
GEORGETTE NICOSKI
First Defendant
NUTRIMETICS INTERNATIONAL (AUSTRALIA) PTY LTD
Second Defendant

Catchwords:

Practice and procedure - Directions under O 61 r 2 - Application to adjourn taking of account until after appeal - Principles to be applied - Turns on own facts

Legislation:

Supreme Court Rules, O 61 r 2

Result:

Taking of accounts adjourned until after determination of appeal

Category: B

Representation:

Counsel:

Plaintiff:     Mr T B Lyons
First Defendant             :     Mr M D Howard
Second Defendant         :     Mr M D Howard

Solicitors:

Plaintiff:     Gibson Lyons
First Defendant             :     Tottle Partners
Second Defendant         :     Tottle Partners

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

Alexander v Cambridge Credit Ltd (1985) 2 NSWLR 685
Catlin v National Australia Bank Ltd [2002] WASCA 224
Federal Commissioner of Taxation v Myer Emporium Ltd (No 1) (1986) 160 CLR 220
Hamersley Iron Pty Ltd v Lovell (No 2) (1998) 20 WAR 79

Case(s) also cited:

Christmas Island Resort Pty Ltd v Geraldton Building Co Pty Ltd (No 5) (1997) 18 WAR 334
Deputy Commissioner of Taxation v Fontana [1989] WAR 262
Hyam v Terry (1880) 29 WR 32
Stambulich v Ekamper [2001] WASCA 212
Total Autos Pty Ltd v Ure [2000] WADC 118
Wentworth v AttorneyGeneral (NSW) (1984) 154 CLR 518
Williams v Spautz (1992) 174 CLR 509

MASTER NEWNES: The plaintiff has applied, under O 61 r 2 of the Supreme Court Rules, for directions following orders by Barker J, after the trial of the action, for the taking of accounts and inquiries. In substance, the plaintiff merely seeks to have the taking of the accounts adjourned until an appeal by the first defendant against the orders of Barker J is determined.
The primary proceedings between the plaintiff and the defendants concerned the plaintiff's entitlements in respect of a Nutrimetics consultancy business. It is unnecessary for present purposes to go into the detail of the proceedings. Suffice it to say that the plaintiff alleged he had been a partner with the first defendant in the business from February 1997 and that the partnership had never been terminated. The plaintiff said he had ceased to have any active involvement in the business from 22 December 1999, when the personal relationship between himself and the first defendant broke down. The first defendant denied that there was ever a partnership between the plaintiff and herself.
Following a trial lasting six days, Barker J found that the plaintiff and the first defendant were partners in the business from 5 February 1997 to 19 April 1999, when, his Honour found, the partnership was dissolved. As a consequence of his findings, Barker J made a number of orders, including the following:
"(6)orders that the following accounts or inquiries be taken by a Master of the Court:
(a)an…

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.

Continue reading WILLIAMS v Nicoski

Details

AGLC: WILLIAMS v Nicoski [2003] WASC 224
Case: [2003] WASC 224
Decision Date

CaseChat Overview and Summary

In the case of Williams v Nicoski, the plaintiff sought to have the taking of accounts, ordered by the Court following a trial, adjourned until an appeal by the first defendant against the trial judge's orders was determined. The primary proceedings involved the plaintiff's entitlements in respect of a Nutrimetics consultancy business. The plaintiff claimed to have been a partner with the first defendant from February 1997 until the partnership dissolved on 19 April 1999. The first defendant denied the existence of a partnership. The trial judge found that a partnership did exist from February 1997 to April 1999 and ordered various accounts and inquiries be taken. The first defendant appealed against the trial judge's findings, including the existence of a partnership.

The plaintiff argued that special circumstances justified a stay of the taking of accounts due to potential waste of time and costs if the first defendant's appeal was successful. The first defendant opposed the stay and argued that the Court lacked the power to grant a stay under O 61 r 2 of the Supreme Court Rules. The first defendant also contended that no special circumstances had been shown to warrant a stay.

The Court held that the principles relating to a stay of execution did not apply since the taking of accounts was a further proceeding to give effect to the trial findings. The Court considered the efficient use of public resources and noted that the taking of accounts was for the benefit of the plaintiff. The Court found that delaying the taking of accounts until the appeal was determined would be the more appropriate course, as the costs and resources expended on the accounts could be entirely wasted if the first defendant's appeal succeeded. The Court granted the plaintiff's application for directions, adjourning the taking of accounts pending the determination of the first defendant's appeal, with liberty for the parties to apply if circumstances arose requiring reconsideration.

Orders