BENSTEAD -v- CLARK [2007] WASC 219

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WASC 219
Case No:	GDA:3/2007	Heard:	7 SEPTEMBER 2007
Coram:	BEECH J	Delivered:	7/09/07
No of pages:	13	Judgment Part:	1 of 1
Result:	Application for leave to appeal dismissed
Category:	B
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Parties:	GRAHAM SYDNEY BENSTEAD RICHARD MITFORD ROWELL RICHARD MELVILLE CLARK THE OWNERS OF ROSNEATH FARM STRATA PLAN 35452 ELIZABETH PATRICIA BLACK
Catchwords:	Strata titles Appeal against decision of State Administrative Tribunal that 'Form 20' application be executed Scope of appeal Whether 'question of law' Whether leave should be granted Turns on own facts
Legislation:	State Administrative Tribunal Act 2004 (WA) s 105 Strata Titles Act 1985 (WA) s 8, s 8A
Case References:	Maggbury Pty Ltd v Hafele Australia Pty Ltd (2001) 210 CLR 181 Pacific Carriers Ltd v BNP Parabas (2004) 218 CLR 415 Paridis v Settlement Agents Supervisory Board [2007] WASCA 97 Permanent Building Society v Wheeler (1992) 10 WAR 109 Re Monger; ex parte Dutch (2001) 25 WAR 96 Toll (FGCT) Pty Ltd v Alphapharm (2004) 219 CLR 165 Wilson v Anderson (2002) 213 CLR 401

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : BENSTEAD -v- CLARK [2007] WASC 219 CORAM : BEECH J HEARD : 7 SEPTEMBER 2007 DELIVERED : 7 SEPTEMBER 2007 FILE NO/S : GDA 3 of 2007 BETWEEN : GRAHAM SYDNEY BENSTEAD

RICHARD MITFORD ROWELL

Appellants

AND

RICHARD MELVILLE CLARK

First Respondent

THE OWNERS OF ROSNEATH FARM STRATA PLAN 35452

ELIZABETH PATRICIA BLACK

Second Respondents

ON APPEAL FROM:

Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA

Coram : MR C RAYMOND (SENIOR MEMBER)

File No : CC 247 of 2007

(Page 2)

Catchwords:

Strata titles - Appeal against decision of State Administrative Tribunal that 'Form 20' application be executed - Scope of appeal - Whether 'question of law' - Whether leave should be granted - Turns on own facts

Legislation:

State Administrative Tribunal Act 2004 (WA) s 105

Strata Titles Act 1985 (WA) s 8, s 8A

Result:

Application for leave to appeal dismissed

Category: B

Representation:

Counsel:

Appellants : Mr G M G McIntyre SC

First Respondent : Mr D F Beere

Second Respondents : No appearance

Solicitors:

Appellants : Christopher Garvey

First Respondent : Beere & Meyer

Second Respondents : No appearance

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

Maggbury Pty Ltd v Hafele Australia Pty Ltd [2001] HCA 70; (2001) 210 CLR 181
Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Permanent Building Society (in liq) v Wheeler (1992) 10 WAR 109
Re Monger; Ex parte Dutch [2001] WASCA 220; (2001) 25 WAR 96
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165
Wilson v Anderson [2002] HCA 29; (2002) 213 CLR 401

(Page 3)

1 BEECH J: By notice of appeal dated 20 June 2007, the appellants seek…

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 Benstead v Clark

Details

AGLC: Benstead v Clark [2007] WASC 219
Case: [2007] WASC 219
Decision Date: 7 SEPTEMBER 2007

CaseChat Overview and Summary

In the case of Benstead v Clark, the plaintiff sought to appeal a decision of the State Administrative Tribunal that a 'Form 20' application be executed. The plaintiff argued that the Tribunal had incorrectly applied the law in reaching its decision. The appeal was heard in the Supreme Court of South Australia.

The legal issues before the court were whether the appeal fell within the scope of the statutory framework and whether the appeal involved a question of law. The court had to determine whether leave should be granted for the appeal to proceed. The court held that the appeal did not involve a question of law and did not fall within the scope of the statutory framework. The court found that the appeal was more concerned with the application of the law to the facts of the case, rather than the correctness of the legal principles themselves.

The court held that the appeal was not a proper appeal and that leave should not be granted. The court found that the appeal was an attempt to relitigate the merits of the case and was not an appeal involving a question of law. The court held that the appeal was not within the scope of the statutory framework and that the appeal should be dismissed.

The final orders of the court were that the application for leave to appeal was dismissed. The court found that the appeal did not involve a question of law and that the appeal was not within the scope of the statutory framework. The court held that the appeal was an attempt to relitigate the merits of the case and that leave should not be granted.

Orders

Orders of the court

Application for leave to appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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