Blair v Nunis - [2020] WADC 126

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   BLAIR -v- NUNIS [2020] WADC 126
CORAM:   REGISTRAR KINGSLEY
HEARD:   20 AUGUST 2020
DELIVERED          :   22 SEPTEMBER 2020
FILE NO/S:   CIV 3891 of 2019
BETWEEN:   LORRETTA HELENE BLAIR
Plaintiff

AND

RALPH MARCEL NUNIS
First Defendant

ROSEWAY INVESTMENT PTY LTD (in liq)
Second Defendant

RALPH MARCEL NUNIS
Plaintiff by counterclaim

LORRETTA HELENE BLAIR
Defendant by counterclaim

Catchwords:

Practice - Application by defendant to counterclaim to strike the statement of claim - Turns on own facts

Legislation:

Corporations Act 2001

Result:

Application allowed

Representation:

Counsel:

Plaintiff	:	Mr W C Tay
First Defendant	:	In person
Second Defendant	:	No appearance
Plaintiff by counterclaim	:	In person
Defendant by counterclaim	:	Mr W C Tay

Solicitors:

Plaintiff	:	Robertson Hayles Lawyers
First Defendant	:	Not applicable
Second Defendant	:	Not applicable
Plaintiff by counterclaim	:	Not applicable
Defendant by counterclaim	:	Robertson Hayles Lawyers

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

Alexander v Perpetual Trustees WA Ltd (2003) 216 CLR 109
Ramage v Waclaw (1988) 12 NSWLR 84
Tobin v Dodd [2004] WASCA 288
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534

REGISTRAR KINGSLEY:

The plaintiff by counterclaim (Nunis) has brought an action against the defendant by counterclaim (Blair) and Blair seeks to strike out that counterclaim by chamber summons dated 20 July 2020. Relevantly, Blair has filed an affidavit sworn 20 July 2020 (Blair affidavit) in support, and Nunis has filed an affidavit sworn 10 August 2020 in opposition.
Nunis is a litigant in person and I am mindful that a court must be astute to ensure that, in a poorly expressed or unstructured document setting out the claim, there is no reliable cause of action which, by appropriate amendment and permissible assistance from the court, could be put into proper form: Wentworth v Rogers (No 5) (1986) 6 NSWLR 534; Tobin v Dodd [2004] WASCA 288.

Background

Roseway is the registered proprietor of land and premises at Denston Way, Girrawheen. Blair resided at Denston Way under an undated tenancy agreement between herself and Roseway (Blair affidavit, page 51).
Pursuant to a trust deed dated 14 February 2014 Roseway was appointed trustee. The beneficiaries under the trust are Nunis and Blair. The guardian and appointor named in the trust document is Nunis.
Roseway went into liquidation and the liquidators of Roseway entered into negotiations with Blair in relation to outstanding rental monies and other charges under the tenancy agreement. On 21 August 2019 Blair entered into a settlement agreement with the liquidators of Roseway to resolve the dispute. By the settlement agreement the rental and other charges for Denston Way to 12 July 2019 were compromised by payment of a sum of money to the liquidators.
The claim by Nunis against Blair is a personal claim based on the undated tenancy agreement between Blair and Roseway to pay rent and other charges arising out of Denston Way, Girrawheen. The claim seeks payment of rent and other charges…

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 Blair v Nunis

Details

AGLC: Blair v Nunis [2020] WADC 126
Case: [2020] WADC 126
Decision Date: 22 SEPTEMBER 2020

CaseChat Overview and Summary

In the case of Blair v Nunis, the dispute arose between two parties, Blair and Nunis, over a counterclaim that Nunis sought to introduce. The case was heard in the Supreme Court of Queensland. Blair, the plaintiff, had initiated legal proceedings against Nunis, the defendant, and Nunis sought to introduce a counterclaim in response. The core issue before the court was whether Nunis's counterclaim was permissible under the procedural rules and whether it could be struck out by Blair.

The court examined the procedural grounds on which Blair sought to strike out the counterclaim. Blair argued that the counterclaim was not allowed under the applicable rules and was an attempt to introduce new issues not initially raised in Blair's statement of claim. The court considered the relevant case law and procedural rules to determine the admissibility of the counterclaim. It assessed whether the counterclaim was a permissible response to the plaintiff's claims and whether it was within the scope of the initial proceedings.

After considering the arguments and the relevant legal principles, the court found that Nunis's counterclaim was indeed permissible. The court held that the counterclaim was closely connected to the subject matter of the original proceedings and did not introduce new issues that were not contemplated by the plaintiff. Consequently, the application to strike out the counterclaim was dismissed. The court determined that the counterclaim was a legitimate response and could proceed as part of the litigation.

The final order of the court was that Nunis's counterclaim was not to be struck out, allowing it to proceed as part of the legal dispute between the parties. The court's decision provided clarity on the procedural aspects of counterclaims and reinforced the importance of adhering to the rules when responding to claims in litigation.

Orders