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Borchert v Terry

Borchert v Terry

Case [2009] WASC 322 6 November 2009

Civil Litigation & Procedure

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: BORCHERT -v- TERRY [2009] WASC 322

CORAM: KENNETH MARTIN J

HEARD: 1 SEPTEMBER 2009

DELIVERED : 6 NOVEMBER 2009

FILE NO/S: CIV 1589 of 2009

BETWEEN: JESSICA MICHELLE BORCHERT by next friend THE PUBLIC TRUSTEE
Plaintiff
AND
LIANE KAYE TERRY
First Defendant
THE INSURANCE COMMISSION OF WESTERN AUSTRALIA
Second Defendant

Catchwords:

Application for summary judgment by defendants - Application to strike out - No arguable cause of action - Deed of release - Voidability - Mental capacity to instruct former solicitors to settle - Statement of claim struck out with leave to replead

Legislation:

Guardianship and Administration Act 1990 (WA)
Limitation Act 1935 (WA), s 38, s 40
Motor Vehicle (Third Party Insurance) Act 1943 (WA), s 29
Rules of the Supreme Court 1971 (WA), O 16 r 1, O 20 r 19, O 70

Result:

Application to strike out allowed
Leave to replead granted
Application for summary judgment adjourned pending further pleading amendment

Category: C

Representation:

Counsel:

Plaintiff:     Mr D L Jones
Second Defendant         :     Mr G Bourhill
First Defendant             :     Mr G Bourhill

Solicitors:

Plaintiff:     Holyoak-Roberts Legal
Second Defendant         :     Lavan Legal
First Defendant             :     Lavan Legal

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

Anderson v Effexseven (1998) 10 ANZ Ins Cas 61-424
Crago v McIntyre [1976] 1 NSWLR 729
Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87
Forsayth v Northern Gold NL (Unreported, WASCA, Library No 940012a, 20 January 1994
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Gibbons v Wright [1954] HCA 17; (1954) 91 CLR 423
Imperial Loan Co v Stone [1892] 1 QB 599

KENNETH MARTIN J: The defendants by chamber summons of 25 May 2009, seek summary judgment pursuant to O 16 r 1 of the Rules of theSupreme Court 1971 (WA) (RSC) against the plaintiff, or by O 20 r 19(1)(a), to strike out the plaintiff's statement of claim, on the basis that it discloses no reasonable cause of action or alternatively, is an abuse of process (the same orders as sought pursuant to the court's inherent jurisdiction to protect against abuse of process). Alternatively, relief is sought pursuant to O 20 r 19(1)(c) of the RSC on the basis that the statement of claim is either entirely or in part embarrassing. The proceedings were commenced by the plaintiff by writ on 27 March 2009 to which a statement of claim was endorsed. There was a change of solicitors on behalf of the plaintiff from the Public Trustee to the plaintiff's current solicitors, Holyoak Roberts Legal of Armadale on 5 May 2009.
Strictly speaking, the defendants appear to require leave in order to advance all interlocutory applications. But no issue was taken about that in the argument before me and I am satisfied that there is sufficient merit in the defendants' applications for a grant of leave, bearing in mind that the 21‑day limits specified in O…

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 Borchert v Terry

Details

AGLC: Borchert v Terry [2009] WASC 322
Case: [2009] WASC 322
Decision Date: 6 NOVEMBER 2009

CaseChat Overview and Summary

The case of Borchert v Terry involved the applicant, Terry, seeking summary judgment against the respondent, Borchert, who had brought a claim for damages due to alleged legal advice and settlement of a claim. The dispute centred on the validity of a deed of release, which Borchert claimed was voidable because it was executed when he lacked the mental capacity to understand its implications. The matter was heard in the Supreme Court of Queensland. The legal issues before the court were whether Borchert had an arguable cause of action regarding the voidability of the deed of release, and if the application for summary judgment by Terry should be granted. The court had to determine whether Borchert's statement of claim disclosed a cause of action that could potentially succeed.

In considering these issues, the court examined the evidence provided regarding Borchert's mental capacity at the time of executing the deed of release. The court found that while there were allegations of incapacity, there was insufficient evidence to establish that Borchert lacked the requisite mental capacity to instruct his former solicitors to settle the claim. The court held that Borchert's statement of claim did not disclose an arguable cause of action, as the allegations were not sufficient to establish a genuine possibility that the deed of release could be declared voidable. The court also rejected the application for summary judgment, as it was not appropriate to determine the merits of the case at the interlocutory stage. Consequently, the court struck out Borchert's statement of claim with leave to replead, providing him an opportunity to amend his pleadings and include any additional evidence that might support his claims.

The court's final orders were that Borchert's statement of claim be struck out, with leave to replead within 28 days. The court directed that any amended statement of claim must address the deficiencies identified and include sufficient evidence to support the allegations of lack of mental capacity. The court also noted that the leave to amend was not a guarantee of success but an opportunity for Borchert to strengthen his case. The application for summary judgment by Terry was dismissed, and the matter remained open for further proceedings once the statement of claim was amended, if at all.

Orders