Woodley v Woodley - [2019] WASC 316

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   WOODLEY -v- WOODLEY [2019] WASC 316
CORAM:   TOTTLE J
HEARD:   22 AUGUST 2019
DELIVERED          :   22 AUGUST 2019
PUBLISHED           :   30 AUGUST 2019
FILE NO/S:   CIV 2347 of 2019
BETWEEN:   ROSS MAXWELL WOODLEY
First Applicant
ROSLYN PATRICIA WOODLEY
Second Applicant
AND
VALENTINA VLADIMIROVNA WOODLEY
First Respondent
THE REGISTRAR OF TITLES
Second Respondent

Catchwords:

Application for freezing order - Whether risk of dissipation of assets - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA) O 52A r 5

Result:

Application dismissed

Category: B

Representation:

Counsel:

First Applicant	:	Mr P G Donovan
Second Applicant	:	Mr P G Donovan
First Respondent	:	Mr M G Pendlebury
Second Respondent	:	No appearance

Solicitors:

First Applicant	:	MDS Legal
Second Applicant	:	MDS Legal
First Respondent	:	Summers Legal
Second Respondent	:	No appearance

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

BGC Contracting Pty Ltd v WA Construction Hire Pty Ltd [2010] WASC 25
Cardile v LED Builders Pty Ltd [1999] HCA 18; (1999) 198 CLR 380
Commonwealth Bank of Australia v Oswal [2011] WASC 84
Construction Engineering (Aust) Pty Ltd v Tambel (Australasia) Pty Ltd [1984] 1 NSWLR 274
Duro Felguera Australia Pty Ltd v Trans Global Projects Pty Ltd (In Liq) [2018] WASCA 174
Perdaman Chemicals & Fertilisers Pty Ltd v Griffin Coal Mining Co Pty Ltd [2011] WASC 188
Third Chandris Shipping Corporation v Unimarine SA [1979] 1 QB 645

TOTTLE J:

Overview

The applicants are the brother and sister‑in‑law of the late Terry Ray Woodley (the deceased). They are also creditors of his estate. The first respondent is the widow of the deceased and the executrix of the deceased's will.
The applicants applied for a freezing order restraining the first respondent from dealing with four properties that form part of the estate without the applicants' written consent. After a hearing on 22 August 2019 I dismissed the application. I gave brief oral reasons for so doing and said that more detailed reasons would be published. These are those reasons.
The application was brought by an originating summons filed on 31 July 2019. The application was made under O 52A r 5 of the Rules of the Supreme Court 1971 (WA). On 1 August 2019 I made interim orders in favour of the applicants and gave directions for the filing and service of further evidence and submissions.
This application is an unfortunate sequel to the proceedings brought by the deceased in respect of the estates of his parents. The applicants are creditors by reason of costs orders made in their favour in that litigation. It is common ground that the costs to which the applicants are entitled exceed $900,000. The taxation processes have yet to be completed so the final amounts have not been determined. From the applicants' perspective the practical consequence of this is that they are not in a position to apply for a property (seizure and sale) order under s 59 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: [2019] WASC 316
Decision Date: 30 AUGUST 2019

CaseChat Overview and Summary

The case of Woodley v Woodley involved an application for a freezing order by the applicants, seeking to prevent the first respondent from dissipating assets. The applicants contended that the first respondent, who was incorporated outside of Australia, had a history of moving assets and that there was a risk of dissipation due to the moveable nature of the assets within the jurisdiction. The court was required to determine whether the risk of dissipation was established and whether a freezing order should be granted. The applicants argued that the first respondent's history of moving assets and the fact that she was incorporated outside of Australia warranted an inferential finding of danger of dissipation. However, the court found that these facts were not enough to warrant such a finding. The court held that, even if the applicant's claim appears strong and the prejudice to the respondent is minimal, a freezing order should not be made unless the risk of dissipation is established. The court found that many of the facts were not controversial and that the principal issue was what inferences could be drawn from the facts. Ultimately, the court dismissed the application for a freezing order as the applicants had not established a risk of dissipation.

Orders

Orders of the court

Application dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The fact that assets within the jurisdiction are moveable, and that the respondent is incorporated outside the jurisdiction is not enough to warrant an inferential finding of danger of dissipation.[6] [6] Third Chandris Shipping Corporation v Unimarine SA [1979] 1 QB 645, 671 (Lawton LJ). No matter how strong the applicant's claim appears to be and how inconsequential the prejudice to the respondent by the ordering of security, a freezing order should not be made unless the risk of dissipation is established.[7][7] Construction Engineering (Aust) Pty Ltd v Tambel (Australasia) Pty Ltd [1984] 1 NSWLR 274, 281 (Clarke J). Many of the facts were not controversial. The principal issue is what inferences may be drawn from the facts. In the following section of my reasons I will first set out some background facts. I will then identify the factual contentions relied upon by the applicants from which they submit the court should infer there is a risk that the first respondent will remove estate assets from the jurisdiction. The deceased carried on business as an accountant. Before coming to live in Australia the first respondent lived in Siberia, Russia. She is a university graduate and practised law in Russia as an 'in-house' lawyer for a construction company. She had been a practising lawyer for about six years before she met the deceased. After visiting each other in the respective countries the deceased and the first respondent decided to get married. They married in January 2011. Visa restrictions meant that the first respondent did not start to live permanently in Western Australia until August 2011. The first respondent and the deceased had two children. They are now aged four and six years. During their married life the first respondent and the deceased lived together in the McDowell Street house which is where the first respondent and her children continue to live. The first respondent's only family in Russia is her mother with whom she does not have a close relationship. She has only spoken to her mother once in 2019 and that was in May when her mother telephoned her to inform her that her father had died. The first respondent has not returned to Russia since August 2011. In addition to his accountancy practice the deceased carried on farming activities on the Buller Road farm, a 500 acre property. The Patterson Road block and the McDowell Street block are vacant blocks of land. The National Australia Bank has mortgages over the Patterson Road block and the McDowell Street house as security for a debt of approximately $500,000. The Commonwealth Bank of Australia has a mortgage over the McDowell Street block but no money is owed under the mortgage. The first respondent obtained a grant of probate in respect of the estate on 15 March 2019 and she is the sole beneficiary. On 11 April 2019 the first respondent engaged real estate agents to sell the Patterson Road block and the McDowell Street block and the properties have been openly marketed by the real estate agents.