Wright v De Kauwe - [2023] WASCA 42

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   WRIGHT -v- DE KAUWE [2023] WASCA 42
CORAM:   MURPHY JA
MITCHELL JA

HEARD:   24 FEBRUARY 2023
DELIVERED          :   13 MARCH 2023
FILE NO/S:   CACV 25 of 2022
BETWEEN:   MATTHEW WRIGHT
Appellant
AND
BRENDAN JAMES DE KAUWE
First Respondent
HAIM COHEN
Second Respondent
ILAN SAAD
Third Respondent
GALIT ASSAF SHENHAR
Fourth Respondent
ERAN GILBOA
Fifth Respondent
BENJAMIN KARASIK
Sixth Respondent
IAN CRAIG PAMENSKY
Seventh Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   LE MIERE J
Citation: DE KAUWE -v- COHEN [No 4] [2022] WASC 35
File Number            :   CIV 1512 of 2018
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   LE MIERE J
Citation: DE KAUWE -v- COHEN [No 4] [2022] WASC 35 (S)
File Number            :   CIV 1512 of 2018

Catchwords:

Appeal - Practice and procedure - Application for stay of enforcement of primary orders pending determination of an appeal from the primary decision - Civil Judgments Enforcement Act 2004 (WA) s 15 - Where appeal said to be rendered nugatory by reason of the prospect that money paid may not be recoverable from first respondent if appeals succeed - Whether special circumstances - Whether appeals have reasonable prospects of success - Whether balance of convenience favoured stay of enforcement - Turns on own facts

Legislation:

Civil Judgments Enforcement Act 2004 (WA), s 15

Result:

Applications for suspension orders granted in part
Applications to amend granted

Category: B

Representation:

Counsel:

Appellant	:	C P K Russell
First Respondent	:	A J Tharby
Second Respondent	:	J D MacLaurin SC and S D Hubbard
Third Respondent	:	J D MacLaurin SC and S D Hubbard
Fourth Respondent	:	J D MacLaurin SC and S D Hubbard
Fifth Respondent	:	J D MacLaurin SC and S D Hubbard
Sixth Respondent	:	J D MacLaurin SC and S D Hubbard
Seventh Respondent	:	F P Merenda

Solicitors:

Appellant	:	Wotton + Kearney Lawyers (Perth)
First Respondent	:	Bennett
Second Respondent	:	DLA Piper Australia - Perth
Third Respondent	:	DLA Piper Australia - Perth
Fourth Respondent	:	DLA Piper Australia - Perth
Fifth Respondent	:	DLA Piper Australia - Perth
Sixth Respondent	:	DLA Piper Australia - Perth
Seventh Respondent	:	Jackson McDonald

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

Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27; (2021) 392 ALR 540
Spiers Earthworks Pty Ltd v Landtec Projects Corporation Pty Ltd [2010] WASCA 226
Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168
Washburn Pty Ltd v Cardaci [2022] WASCA 43

JUDGMENT OF THE COURT:

Summary

We are considering applications by the appellant and the second to seventh respondents, who were the defendants in the primary proceedings. We shall refer to them collectively as the defendants. The defendants have applied for suspension of the enforcement of final orders made by the trial judge,…

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: [2023] WASCA 42
Decision Date

CaseChat Overview and Summary

In the case of Wright v De Kauwe, the parties involved were Mr Wright and Dr de Kauwe, with additional defendants including several directors and Mr Pamensky. The dispute centred around the enforcement of primary orders made in favour of Dr de Kauwe, including a significant damages award, and the implications of these orders on Mr Wright's appeal against his liability for defamatory statements. The case was heard in the court of appeal, where the primary focus was on whether a stay of execution should be granted pending the outcome of the appeal and cross-appeals.

The legal issues that the court had to resolve included whether the defendants had demonstrated that Dr de Kauwe would not be able to repay the judgment or costs if the appeal and cross-appeals succeeded, and whether the enforcement of the orders would render the appeal nugatory. Dr de Kauwe contested the limits of the financial searches conducted by the defendants but the court held that the onus was on him to prove his capacity to repay, especially given his refusal to disclose any information about his assets and liabilities. The court also considered whether the enforcement of certain orders would prejudice Mr Wright's appeal by potentially rendering it ineffective if he were forced to pay the damages while the appeal was ongoing.

The court found that the defendants had provided sufficient evidence to suggest that Dr de Kauwe would likely be unable to repay the judgment if the appeal succeeded, and that the enforcement of certain orders would indeed prejudice Mr Wright's appeal by making it nugatory. The court therefore granted a stay of execution of specific orders pending the outcome of the appeal and cross-appeals. The court's reasoning was grounded in the need to balance the rights of the parties involved and ensure that the appeal process was not unduly prejudiced by immediate enforcement of the primary orders.

The final orders of the court included a stay of execution of certain orders pending the appeal and cross-appeals, thereby protecting Mr Wright's ability to effectively challenge his liability without being forced to pay substantial damages before the appeal was resolved.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

We do not accept Dr de Kauwe's other submissions that the defendants have not established that he would not be able to repay the judgment or costs if the appeal and cross-appeals succeed. He criticises the limits to the searches undertaken by the defendants.[67] However, as Newnes JA noted in Spiers Earthworks Pty Ltd v Landtec Projects Corporation Pty Ltd,[68] in rejecting a similar submission in that case:It is the case, as counsel for the respondent submitted, that the appellant bears the onus of establishing that a stay should be granted. But beyond publicly available information, the financial position of the respondent is not a matter to which the appellant can be expected to be privy and, despite request, the respondent has refused to disclose any information as to its assets and liabilities. The respondent cannot defeat the application simply by relying upon the inaccessibility of its financial affairs. In circumstances where, as I am satisfied is the case here, the appellant has adduced evidence which indicates that the respondent does not have the capacity to repay the money, it falls to the respondent, if it wishes to resist the application, to show that in fact it does have that capacity.[67] First respondent's submissions, pars 19 - 25.[68] Spiers Earthworks Pty Ltd v Landtec Projects Corporation Pty Ltd [2010] WASCA 226 [22]. Here, Dr de Kauwe is in the best position to adduce evidence of his own financial affairs. The fact that he has exercised his right not to do so is not a substitute for proof, by the defendants, of his likely incapacity to repay. However, the absence of evidence from Dr de Kauwe as to his financial affairs enables this court to more readily draw the inference as to that likely incapacity from the evidence which has resulted from the defendants' searches of publicly available records. In light of the above conclusion as to Dr de Kauwe's current financial position, we turn to consider whether in the absence of a stay the appeal will be rendered nugatory. We accept that, in the absence of a stay, Mr Wright's appeal against the orders finding him liable for the publication of the Second ASX Announcement would be rendered nugatory if enforcement of order 4 of the primary orders against Mr Wright is not suspended. Involvement in the publication of the Second ASX Announcement was the only basis on which Mr Wright was found liable to pay damages to Dr de Kauwe. If Mr Wright's grounds of appeal challenging that finding succeed, then he will not be liable to pay any amount to Dr de Kauwe. If, in the meantime, Mr Wright is to pay to Dr de Kauwe the $485,374.61 required by order 4, then there is a real prospect that he will be unable to effectively enforce an order for repayment of that amount. The position of the director defendants and Mr Pamensky is different, in that (putting aside issues of costs for the moment) their substantive grounds of cross-appeal challenge only aspects of the trial judge's award of special damages. If the director defendants' cross‑appeal were successful it would lead only to the setting aside of order 4(b) and 4(d) of the primary orders. Mr Pamensky's cross-appeal challenges only the award of damages in order 4(d) of the primary orders. Determination of the grounds of appeal against orders awarding damages provide no basis for suspending enforcement of orders 1 ‑ 3, 4(a), 4(c) or 5 of the primary orders against the director defendants or Mr Pamensky.