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Ardrey v Bartlett

Ardrey v Bartlett

Case [2004] WASCA 256 12 November 2004

Stay of Proceedings

Appeal

Contract Law

Civil Litigation & Procedure

Type to search within this case.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: ARDREY -v- BARTLETT & ORS [2004] WASCA 256

CORAM: MURRAY ACJ
STEYTLER J
TEMPLEMAN J

HEARD: 13 SEPTEMBER 2004

DELIVERED : 13 SEPTEMBER 2004

PUBLISHED : 12 NOVEMBER 2004

FILE NO/S: FUL 115 of 2004

BETWEEN: SUSAN ALEXIA CHEN ARDREY
Appellant
AND
ROGER MAXWELL BARTLETT
ALISON CATHERINE BARTLETT
First Respondents
ASHLEY VAUGHAN ARBUCKLE
Second Respondent
G & R ROSSEN PTY LTD (007 6368 584)
Third Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :PULLIN J
Citation  :BARTLETT & ANOR -v- ARBUCKLE & ORS
File No  :CIV 1396 of 2004

Catchwords:

Practice and procedure - Application for stay of execution pending appeal - Tests for determination - Dispute between parties to two contracts for sale of land - No new matter of principle involved

Legislation:

Land Title Act 1994 (Qld), s 184(3)(b), s 185(1)(a)

Rules of the Supreme Court 1971 (WA), O 47 r 13(1)(a), O 63 r 10, O 63 r 15(1)(a)
Supreme Court Act 1935 (WA), s 58(1)(a), s 59(4)

Transfer of Land Act 1893 (WA), s 68(1), s 134

Result:

Application dismissed with costs

Category: B

Representation:

Counsel:

Appellant:     Mr M L Bennett
First Respondents         :     Ms K F Banks-Smith
Second Respondent      :     Mr B H Taylor
Third Respondent          :     Mr M J Buss QC & Ms K M Davidson

Solicitors:

Appellant:     Bennett & Co
First Respondents         :     Freehills
Second Respondent      :     Talbot & Olivier
Third Respondent          :     Mullins Handcock

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

Eastland Technology Australia Pty Ltd v Whisson (2003) 28 WAR 308
Fox v Percy (2003) 214 CLR 118
JC Scott Constructions v Mermaid Waters Tavern Pty Ltd (No 2) (1983) 2 Qd R 255
LHK Nominees Pty Ltd v Kenworthy (2002) 26 WAR 517
White v Tomasel [2004] QCA 89

Case(s) also cited:

Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685
Assets Co Ltd v Mere Roihi [1905] AC 176
Cox v Simeon, unreported; FCt SCt of WA; Library No 5063; 7 September 1983
Croney v Nand [1999] 2 Qd R 342
Dawson v Westpac Banking Corp (1991) 104 ALR 295
Devries v Australian National Railways Commission (1993) 177 CLR 472
Halge v George [2004] WASCA 141
Hamersley Iron Pty Ltd v Lovell (No 2) (1998) 20 WAR 79
Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681
Milchas Investments Pty Ltd v Larkin, unreported; SCt of NSW; BC8902077
Paal Wilson & Co A/S v Partenreederei Hannah Blumenthal [1983] 1 All ER 34
Thompson v Palmer (1933) 49 CLR 507
Uranerz (Aust) Pty Ltd v Hale (1980) 30 ALR 193

MURRAY ACJ: This was an application for a stay of execution upon a judgment pending the determination of an appeal. When the matter was heard, the appeal had been granted expedition. Since our decision upon the application the appeal has been abandoned and dismissed.
It is necessary to refer only briefly…

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 Ardrey v Bartlett

Details

AGLC: Ardrey v Bartlett [2004] WASCA 256
Case: [2004] WASCA 256
Decision Date: 12 NOVEMBER 2004

CaseChat Overview and Summary

Ardrey and Bartlett were the parties involved in a dispute regarding two contracts for the sale of land. The matter was before the court to determine an application for a stay of execution pending appeal. The central issue was whether the appellant was entitled to a stay of execution pending the outcome of an appeal. This decision involved a consideration of whether the appellant had demonstrated that the appeal involved a new matter of principle or whether there was any other compelling reason for the stay to be granted.

The court considered the legal tests and principles applicable to such applications. It was noted that the appellant needed to demonstrate that the appeal involved a new matter of principle or that there were other compelling reasons for a stay. The court assessed the arguments presented by both parties, focusing on whether the appeal involved any new legal issues not previously considered. The court found that the appeal did not involve any new matters of principle and that the appellant had not provided sufficient grounds to warrant a stay of execution.

In conclusion, the court dismissed the application for a stay of execution pending appeal. The reasoning was that the appeal did not present any new legal issues and the appellant had not demonstrated compelling reasons to warrant the stay. The orders of the court reflected this decision, with the stay application being refused and the execution of the judgment to proceed as scheduled.

Orders