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Woodings v Stevenson

Woodings v Stevenson

Case [2001] WASC 174 28 June 2001

Jurisdiction

Standing

Limitation Periods

Misjoinder and Nonjoinder of Parties

Civil Litigation & Procedure

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: ANTHONY LESLIE JOHN WOODINGS (AS RECEIVER AND MANAGER OF ELCOS AUSTRALIA PTY LTD (IN LIQ)) -v- JAY A STEVENSON AND PHILIP G JEFFERSON (AS LIQUIDATORS OF ELCOS AUSTRALIA PTY LTD (IN LIQ)) [2001] WASC 174

CORAM: OWEN J

HEARD: 26 JUNE 2001

DELIVERED : 28 JUNE 2001

FILE NO/S: CIV 2266 of 1996

BETWEEN: ANTHONY LESLIE JOHN WOODINGS (AS RECEIVER AND MANAGER OF ELCOS AUSTRALIA PTY LTD (IN LIQ))
Plaintiff
AND
JAY A STEVENSON AND PHILIP G JEFFERSON (AS LIQUIDATORS OF ELCOS AUSTRALIA PTY LTD (IN LIQ))
Defendant

Catchwords:

Practice and procedure - Addition and removal of parties - Receiver named as plaintiff but cause of action lying with appointing creditor - Whether creditor could be substituted for receiver

Legislation:

Rules of the Supreme Court, O 18 r 6(2), r 8(4)

Result:

Application allowed

Representation:

Counsel:

Plaintiff: Mr D R Kilpatrick
Defendant: Mr K L Christensen

Solicitors:

Plaintiff: Williams & Hughes
Defendant: Tottle Christensen

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

Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231
Carob Industries Pty Ltd v Simto Pty Ltd [2000] WASCA 362
Elliot v Williams (1996) 15 SR (WA) 336
Ex parte Sacker (1888) 22 QBD 179
Hauxwell v Barton‑Upon‑Humber Urban District Council [1974] 1 Ch 432
Hughes v The Pump House Hotel Company Limited [1902] 2 KB 485
International Bulk Shipping and Services Ltd v Minerals and Metals Trading Corp of India [1996] 1 All ER 1017
McInnes v Wingcarribee Shire Council (1987) 10 NSWLR 660

Case(s) also cited:

Rodriguez v Spire Brothers [1919] AC 59

OWEN J: This is an application for leave to substitute a party as plaintiff and to make amendments to the writ and the statement of claim which are a consequence of the substitution and in some other (minor) respects.

Background

Elcos Australia Pty Ltd (In Liquidation) ("Elcos") was indebted to the National Australia Bank Ltd ("NBA") for certain advances that had been made to it. NBA held a mortgage debenture over the assets on Elcos as security for the indebtedness. I will refer to the mortgage debenture as "the Charge" and to the indebtedness as "the Debt". On 15 September 1995 Elcos was placed in liquidation by order of the Supreme Court of Queensland. Jay Stevenson and Philip Jefferson were appointed liquidators. On 1 August 1996 NBA assigned the benefit of the Charge and of the Debt to Royal Sunset Pty Ltd ("Royal"). Royal says that the Debt has not been repaid by Elcos. On 22 August 1996 Royal appointed Anthony Woodings as receiver and manager of Elcos pursuant to the Charge.
In the course of the liquidation the liquidators have realised assets which Woodings and Royal say were subject to the Charge and that an amount of $79,035 is due by the liquidators to Royal as a result.
In 1996 Woodings, in his capacity as receiver and manager of Elcos, and as the plaintiff issued a writ against Stevenson, as…

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 Woodings v Stevenson

Details

AGLC: Woodings v Stevenson [2001] WASC 174
Case: [2001] WASC 174
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Western Australia, Anthony Leslie John Woodings, as the receiver and manager of Elcos Australia Pty Ltd (in liquidation), filed a lawsuit against Jay A Stevenson and Philip G Jefferson, who were the liquidators of the same company. The plaintiff claimed that the defendants owed a sum of $79,035 due to the assets of Elcos that were subject to a mortgage debenture held by Royal Sunset Pty Ltd. The defendants raised a preliminary issue concerning the propriety of Woodings maintaining the action. It was common ground that a receiver is not ordinarily entitled to bring an action in his own name for recovery of a debt owed to the secured creditor who appointed him. The court had to decide whether it could allow the substitution of Royal Sunset Pty Ltd for Woodings as the plaintiff and make consequential changes to the writ and the statement of claim. The court considered the relevant provisions of the Rules of the Supreme Court and concluded that Order 18 r 6(2) permitted the substitution of a party in the circumstances that applied in this case. The court exercised its discretion in favour of the substitution, considering the parties had been conducting the action for more than four years and it was reasonably well advanced. The court was prepared to make an order substantially in the terms asked for in the Chamber Summons, including the costs order in par 5 of the summons, and requested the solicitors to agree on the terms of the orders. If there was any dispute, the court would hear the parties as to the formulation of orders.

Orders