YAP -v- MATIC - [2022] WASC 239

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   YAP -v- MATIC [2022] WASC 239
CORAM:   SOLOMON J
HEARD:   ON THE PAPERS
DELIVERED          :   29 JULY 2022
FILE NO/S:   CIV 1106 of 2022
BETWEEN:   VIVIEN JIT SIEN YAP
First Plaintiff

EMPIRE SONS (AUSTRALIA) PTY LTD T/AS RAY WHITE (DALKEITH CLAREMONT)
Second Plaintiff

AND

SANDI MATIC
Defendant

Catchwords:

Notice of Motion to Discharge - Where no new evidence is presented - Where no discharge orders are sought - Indemnity costs

Legislation:

Nil

Result:

The defendant's notice of motion is dismissed

Category: B

Representation:

Counsel:

First Plaintiff	:	Not applicable
Second Plaintiff	:	Not applicable
Defendant	:	Not applicable

Solicitors:

First Plaintiff	:	Bennett
Second Plaintiff	:	Bennett
Defendant	:	In Person

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

Brookvista Pty Ltd v Meloni [2009] WASCA 180
Commonwealth of Australia v Albany Port Authority [2006] WASCA 185
Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122 (S); (2002) 28 WAR 95
Sino Iron Pty Ltd v Mineralogy Pty Ltd [2022] WASC 151
Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S)
Yap v Matic [2022] WASC 181

SOLOMON J:

On 23 May 2022, I granted an interlocutory injunction in favour of the plaintiffs in this matter. The reasons for granting that injunction were published in Yap v Matic [2022] WASC 181.
On Wednesday 8 June 2022, my chambers received via email a 'Notice of Motion to Discharge' from the defendant, Mr Matic (the Notice). Mr Matic explained that he was having difficulty lodging the document through the eCourts portal. After a series of delays regarding payment of filing fees, the court accepted the Notice of Motion for filing on 28 June 2022.
The Notice is titled 'Notice of Motion to Discharge with Prejudice of the Motion for Interlocutory Injunction pursuant to Order 54 Rule 5(2) of the Rules of the Supreme Court 1971'.
Mr Matic in his Notice does not specifically seek orders for the discharge of the injunction, other than in the title of the document. The only orders explicitly sought by the defendant relate to costs of the Notice, costs of the matter generally, and compensation pursuant to the undertakings given in support of the application for the interlocutory injunction.
The Notice purports to have been filed pursuant to leave that was granted to Mr Matic by the orders dated 11 February 2022. Specifically, order 4 of those orders provided Mr Matic with 'liberty to apply on 24 hours' notice to vary or discharge this interim order'.
It is not apparent how or why Mr Matic relies upon O 54 r 5(2). However, there is no doubt that the court maintains control over interlocutory orders and that it may, in its discretion, vary or alter them.[1] In Commonwealth of Australia v Albany Port Authority, the Court of Appeal explained that, generally speaking, courts will not lightly vary or set aside orders previously made, at least in the absence of fraud or fresh evidence.[2] The broad…

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 YAP -v- MATIC

Details

AGLC: YAP -v- MATIC [2022] WASC 239
Case: [2022] WASC 239
Decision Date

CaseChat Overview and Summary

The matter of Yap v Matic [2022] WASC 239 was before the Supreme Court of Western Australia. The case involved an interlocutory injunction granted in favor of the plaintiffs, Vivien Jit Sien Yap and Empire Sons (Australia) Pty Ltd t/as Ray White (Daleith Claremont), against the defendant, Sandi Matic. The primary legal issue was whether the interlocutory injunction should be discharged, given the defendant's notice of motion to discharge the injunction. Additionally, the court had to decide whether to award indemnity costs to the plaintiffs due to the defendant's unreasonable application.

Solomon J examined the defendant's notice of motion to discharge the interlocutory injunction and found that it did not present any new evidence or changes in circumstances that could warrant a discharge. The defendant's affidavits were the same ones previously submitted in support of the plaintiffs' application for the interlocutory injunction. The court highlighted that, generally, courts do not vary or set aside interlocutory orders without a strong justification, such as a material change in circumstances or fresh evidence. Solomon J concluded that the application did not meet these criteria and should be dismissed.

In light of the defendant's unreasonable conduct in filing the notice of motion, the court exercised its discretion to impose sanctions through an indemnity costs order. The principles for granting such an order were affirmed in relevant authorities, emphasizing that the court may penalise parties who act improperly or unreasonably. Solomon J held that the defendant's filing of the notice without a reasonable basis warranted the court's disapproval and ordered the defendant to pay the plaintiffs' costs on an indemnity basis.

The final orders of the court were: (1) dismissing the defendant's notice of motion to discharge dated 8 June 2022 and (2) ordering the defendant to pay the plaintiffs' costs of and incidental to the notice on an indemnity basis to be taxed if not agreed.

Orders