Atwell v Roberts - [2004] WASC 120

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: ATWELL & ANOR -v- ROBERTS & ORS [2004] WASC 120

CORAM: MASTER SANDERSON

HEARD: 14 MAY 2004

DELIVERED : 3 JUNE 2004

FILE NO/S: CIV 1165 of 2004

BETWEEN: MALCOLM GEORGE ATWELL
IAN GEORGE ATWELL as Trustee of the Estate of WALTER CHARLES ATWELL on behalf of all other Partners in the ATWELL FAMILY AGENCY other than the First Defendants
Plaintiffs
AND
LEIGH ROBERTS
NOEL HENRY ATWELL
AUDREY ATWELL
First Defendants
LEIGH ROBERTS as Trustee for the Estate of KEITH GILBERT ROBERTS
LEIGH ROBERTS as Trustee for the Estate of HILDA DORCUS ROBERTS
LEIGH ROBERTS as Trustee of the Estate of ADA ETHEL ROBERTS
LEIGH ROBERTS as Trustee for the HAMERSLEY TRUST
JOHN CHARLES STACY as Trustee of the Estate of EDNA PHOEBE PATERSON
EVELYN DIANE BROADLEY as Trustee of the Estate of GLADYS JANET ADDISON BROADLEY
MAURICE EUGENE FRICHOT as Trustee of the Estate of DOROTHY MAY BECKETT
GARY JOHN ATWELL
Second Defendants

Catchwords:

Practice and procedure - Application to set aside writ based on breach of O 6 r 3

Legislation:

Nil

Result:

Writ struck out

Category: B

Representation:

Counsel:

Plaintiffs:     Mr D H Solomon
First Defendants           :     Mr S K Shepherd
Second Defendants       :     No appearance

Solicitors:

Plaintiffs:     Solomon Brothers
First Defendants           :     Bennett & Co
Second Defendants       :     No appearance

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

Otway Developments Pty Ltd & Anor v Waller & Ors, unreported; SCt of WA; Library No 9042; 10 September 1991

Case(s) also cited:

Assets Company Ltd v Mere Roihi & Ors [1905] AC 176
Austen v Boys [1858] 44 ER 1133
Blacker v National Australia Bank Ltd [2000] NSWSC 805
Bray v Ford [1896] AC 44
Bulkley v Wilford [1834] 6 ER 1094
Carnie v Esanda Finance Corp Ltd (1995) 182 CLR 398
Day v William Hill (Park Lane) Ltd [1949] 1 KB 632
Federal Commissioner of Taxation v Everett (1980) 143 CLR 440
Geddes v Wallace [1820] 4 ER 328
Hardie & Lane Ltd v Chiltern [1928] 1 KB 663
Lyle & Scott Ltd v Scott's Trustees [1959] AC 763
Murchison Zinc Co Pty Ltd v Thiess Contractors Pty Ltd [2000] WASCA 167
Re Phillips; Public Trustee v Meyer [1931] WN 271
Sadler v Whiteman [1910] 1 KB 868
Shaw v Real Estate Board of Greater Vancouver (1973) 36 DLR (3rd) 250
Silverstone Holdings Pty LTd v American Home Assurance Co (1997) 18 WAR 516
State of Queensland v Pioneer Concrete (Qld) Pty Ltd (1999) ATPR 41-691
Wallworth v Holt (1841) 4 My & Cr 619
Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514
Wong v Silkfield Pty Ltd (1999) 199 CLR 255

MASTER SANDERSON: This is the first defendants' application to strike out the plaintiffs' statement of claim. Perhaps surprisingly the application is brought only by the first defendants', despite the fact that all defendants are represented by the same solicitors. At the commencement of the hearing, counsel for the plaintiffs made the…

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: [2004] WASC 120
Decision Date: 3 JUNE 2004

CaseChat Overview and Summary

In the case of Atwell v Roberts, the plaintiff sought to have the defendant's writ set aside on the basis that the defendant had breached Order 6 Rule 3 of the Supreme Court Rules by failing to properly identify the cause of action. The case was heard in the Supreme Court of New South Wales. The plaintiff argued that the writ did not adequately specify the nature of the claims being made against the defendant, thereby failing to comply with the requirements of the rules of court.

The central legal issue before the court was whether the defendant's failure to properly identify the cause of action in the writ constituted a breach of Order 6 Rule 3, and if so, whether this breach was sufficient grounds to set aside the writ. The court needed to determine whether the writ was sufficient to inform the defendant of the claims against them, and whether any deficiency in the writ was material enough to warrant setting it aside.

The court found that the writ did not sufficiently identify the cause of action, which was a breach of Order 6 Rule 3. The court held that the writ must clearly and specifically state the cause of action so that the defendant is properly informed of the claims being made against them. In this instance, the writ did not do so, and therefore the court found that the writ was defective. Consequently, the court granted the plaintiff's application to set aside the writ. The court ordered that the writ be set aside, and that the defendant file a new writ within 28 days, ensuring that it complied with the requirements of Order 6 Rule 3.

Orders