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Armstrong v Armstrong

Armstrong v Armstrong

Case [2004] WASC 121 3 June 2004

Constructive Trust

Equitable Charge

Unconscionable Conduct

Standing

Jurisdiction

Transfer of Proceedings

Family Law

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ARMSTRONG -v- ARMSTRONG & ANOR [2004] WASC 121

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASC 121
Case No:	CIV:1995/2003	Heard:	18 MAY 2004
Coram:	BARKER J	Delivered:	3/06/04
No of pages:	22	Judgment Part:	1 of 1
Result:	Caveats extended Amendment of statement of claim permitted Proceedings transferred to Family Court of Western Australia
Category:	B
PDF Version

Parties:	DEBRA ANN ARMSTRONG BRIAN ARTHUR ARMSTRONG YVONNE ROSE ARMSTRONG
Catchwords:	Application for extension of caveats, amendment of statement of claim and crossvesting of proceedings Whether caveator's claim has substance Whether balance of convenience favours removal of caveats Whether amendment permissible Related proceedings Whether "more appropriate" and "in the interests of justice" to transfer proceedings Turns on own facts
Legislation:	Family Law Act 1975 (Cth), s 117 Jurisdiction of Courts (Cross-Vesting) Act 1987 (WA), s 5(4) Transfer of Land Act 1893 (WA), s 138B, s 138C
Case References:	Baumgartner v Baumgartner (1987) 164 CLR 137 Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42 Fox Enterprises Pty Ltd v Fox (1995) 123 FLR 445 Guimelli v Guimelli (1999) 196 CLR 101 His Grace Metropolitan Petar v Macedonian United Society of Western Australia Incorporated [2003] WASC 15 Hoddell v Hoddell Pty Ltd [1999] WASC 156 Kais v Turvey (1994) 11 WAR 357 Leithead v Leithead (1991) 109 FLR 177 Miller v Miller, unreported; SCt of WA; Library No 980340; 19 June 1998 Muschinski v Dodds (1985) 160 CLR 583 Pindan Pty Ltd v Sunny's Redevelopment Pty Ltd [2001] WASC 104; [2002] ANZ Conv R 51 Re Hamilton-Irvine and the Companies Act 1985 (1990) 94 ALR 428 Seymour v Devine [2003] WASC 260 Finlayson v Finlayson and Gillan (2002) FLC 93121 George Bevan Pty Ltd v Robert Patrick Pty Ltd [1987] NSW Conv R 55363 Green v Green (1989) 17 NSWLR 343 Lambert v Dean (1989) 97 FLR 352 Miller v Sutherland (1990) 14 Fam LR 416 Milne Feeds Pty Ltd v Bride (1993) 10 WAR 542 Mullins Investments Pty Ltd v Elliott Exploration Co Pty Ltd (1990) 1 WAR 531 Porter v McDonald [1984] WAR 271 R & I Bank of Western Australia Ltd v Lavery, unreported; SCt of WA; Library No 930636; 24 November 1993 Warby v Warby (2002) FLC 93091

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : ARMSTRONG -v- ARMSTRONG & ANOR [2004] WASC 121 CORAM : BARKER J HEARD : 18 MAY 2004 DELIVERED : 3 JUNE 2004 FILE NO/S : CIV 1995 of 2003 BETWEEN : DEBRA ANN ARMSTRONG

Plaintiff

AND

BRIAN ARTHUR ARMSTRONG

First Defendant

YVONNE ROSE ARMSTRONG

Second Defendant

Catchwords:

Application for extension of caveats, amendment of statement of claim and crossvesting of proceedings - Whether caveator's claim has substance - Whether balance of convenience favours removal of caveats - Whether amendment permissible - Related proceedings - Whether "more appropriate" and "in the interests of justice" to transfer proceedings - Turns on own facts

Legislation:

Family Law Act 1975 (Cth), s 117

Jurisdiction of Courts…

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 Armstrong v Armstrong

Details

AGLC: Armstrong v Armstrong [2004] WASC 121
Case: [2004] WASC 121
Decision Date

CaseChat Overview and Summary

Armstrong v Armstrong was heard in the Supreme Court of Western Australia. The plaintiff, Debra Ann Armstrong, sought to have two caveats extended that protected her claim to an interest in certain farming land. The first defendant, Brian Arthur Armstrong, is the plaintiff's husband, and the second defendant, Yvonne Rose Armstrong, is Brian's mother. The plaintiff also sought permission to amend her statement of claim and transfer the proceedings to the Family Court of Western Australia. The court found that the caveats should be extended until trial. The proposed amendments to the statement of claim were to be permitted, subject to certain objections being allowed. The proceedings were transferred to the Family Court of Western Australia.

Orders