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 criterion for the exercise of the court's discretion is 'where the interests of justice so require'. Examples provided by the Court of Appeal included where the interlocutory judgment was based on a mistake, a material change of circumstances, or the discovery of fresh evidence.
[1] Commonwealth of Australia v Albany Port Authority [2006] WASCA 185 [24].
[2] Commonwealth of Australia v Albany Port Authority[25].
In his email to the court on 8 June 2022, Mr Matic provided five affidavits in support of the Notice. Each of these affidavits had been previously filed in the proceedings and were before the court when the interlocutory injunction was granted in May 2022.
In that same email, Mr Matic expressed a desire that the matter be 'decided in chambers by the Justice without either party needing to be present.' The plaintiffs did not object to this proposed course.
On 9 June 2022, the plaintiffs were invited via email to their solicitors to respond to the Notice with any affidavit material or written submissions. On 13 June 2022, the plaintiffs' solicitors reverted to the court and explained that they did not intend to file any further material. After Mr Matic's Notice was accepted by the court, the plaintiffs' solicitors filed brief written submissions.
I have considered the Notice. It is not supported by any new material. The affidavits supporting the Notice are the same affidavits that Mr Matic provided in relation to the plaintiffs' application for the interlocutory injunction. There is no suggestion of any change of circumstances or fresh evidence. There is nothing before the court that could persuade me that the interlocutory injunction granted on 23 May 2022 ought to be discharged. The application must be dismissed.
The plaintiffs in their submissions seek the costs of the application.
There is no basis upon which the Notice could be upheld. The court has a discretion to impose sanctions upon parties who act improperly or unreasonably by means of an indemnity costs order.[3]
[3] Brookvista Pty Ltd v Meloni [2009] WASCA 180 [32]; Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122 (S); (2002) 28 WAR 95 [25].
The principles in relation to the granting of an order for indemnity costs are well established and were outlined in Swansdale Pty Ltd v Whitcrest Pty Ltd.[4] These principles were recently affirmed by Quinlan CJ in Sino Iron Pty Ltd v Mineralogy Pty Ltd, and need not be repeated.[5]
[4] Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S) [10].
[5] Sino Iron Pty Ltd v Mineralogy Pty Ltd [2022] WASC 151 [15].
Mr Matic made his application with no submissions and advanced no new evidence. There was, clearly, no arguable basis upon which the interlocutory injunction could have been discharged. I am therefore satisfied that it was unreasonable for Mr Matic to file the Notice and his doing so warrants the court's mark of disapproval.
I thereby make the following orders.
Orders
1.The defendant's Notice of Motion to Discharge dated 8 June 2022 is dismissed.
2.The defendant shall pay the plaintiffs' costs of and incidental to the Notice on an indemnity basis to be taxed if not agreed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
IS
Associate to the Honourable Justice Solomon
29 JULY 2022
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