Bristow v Saulsman - [2009] WASC 111

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: BRISTOW -v- SAULSMAN [2009] WASC 111

CORAM: LE MIERE J

HEARD: 13 NOVEMBER 2008

DELIVERED : 5 MAY 2009

FILE NO/S: CIV 1147 of 2005

BETWEEN: ANNE COLLINGWOOD BRISTOW
ROBERT JAMES HAWKES AND MARGARET HELEN HAWKES
RAYMOND LESLIE GORDON AND PATRICIA ANN GORDON
EDWARD BOLTON JENNINGS AS TRUSTEE FOR THE JENNINGS FAMILY TRUST
PETER McEVOY AND ANNE JUDITH McEVOY
LORELEI ANNE NOTTAGE AS TRUSTEE FOR THE ROSEVILLE TRUST
RONALD ANTHONY PHILLIPS
RAEBURN INVESTMENTS PTY LTD (ACN 058 600 463)
GEORGE ALFRED SHARP
GEOFFREY BASTIAN AND ENID BASTIAN
NARAYANASAMY GOVINDARAJOO AND JANE GOVINDARAJOO
JANET MARIE KELSALL
JUNE DOLORES McLAUGLIN AS TRUSTEE FOR THE McLAUGLIN SUPERANNUATION FUND
LACHLAN CRAIG SIMMS
DIANA MARY VITALI
First Plaintiffs
PATRICIA ELSIE EVELYN ABERNETHY
ARI NOMINEES PTY LTD (ACN 008 925 880)
SUSAN LESLIE CATTANEO
FRANK FREDERICK CULLEN
RODNEY ROYSTON EDMEADES AS NEXT FRIEND OF THOMAS ROYSTON EDMEADES
ANTHONY MICHAEL ERRINGTON AND LYNNETTE EVELYN ERRINGTON
RONALD JOHN RIGG AND URSULA RIGG
REGINALD SMITH
JACK EDWIN IAN THOMSON AND LETITIA MACILVENNA THOMSON AS TRUSTEE FOR THE THOMPSON FAMILY SUPERANNUATION FUND
DENELLE PTY LTD AS TRUSTEE FOR THE B P MOPPET FAMILY TRUST (ACN 008 782 250)
ROSS McRAE AND ROSS McRAE AS EXECUTOR OF THE ESTATE OF HAZEL McRAE DECEASED
AUDREY ROSE ROBINSON
GRAHAM FLINTOFF
RUSSELL STANLEY STEPHENSEN AND VALERIE WILMOT JULIA STEPHENSEN
Second Plaintiffs
AYOT PTY LTD AS TRUSTEE FOR THE HERIOT SADD FAMILY TRUST (ACN 009 077 472)
JOHN GRAYDON EDDY AND JOHN GRAYDON EDDY AS NEXT FRIEND OF OLIVE ROSEMARY EDDY
LUCY ILLIDGE
IVAN HOLDINGS PTY LTD AS TRUSTEE FOR THE STODDARD SUPERANNUATION FUND (ACN 009 195 644)
KEITH DOUGLAS JOHNSON AND MARGARET HILL MURRAY JOHNSON
PELHAM PATRICK MANN AND MARGARET PATRICIA MANN
METAIN PTY LTD AS TRUSTEE FOR THE METAIN TRUST (ACN 072 452 825)
PETER McCABE
WILLIAM REYNOLDS AND MARGARET ELSIE REYNOLDS AS TRUSTEE FOR THE REYNOLDS SUPERANNUATION FUND
MARY SANDLAND
MICHELE ANDREA SAW
PETER SEMAN AND DORIS JEAN SEMAN
CHARLES FRANCIS SWEETING
BIRRALEE NOMINEES PTY LTD (ACN 008 814 226)
COLIN JAMES MULLINS AS NEXT FRIEND OF CLIFFORD JAMES MULLINS
GEOFFREY LAURENCE CAHIF AND MARION CAHIF AS TRUSTEE FOR THE CAHIF FAMILY TRUST
BRIAN DAVID CARVER AND GLENDA MARGARET CARVER AS TRUSTEE FOR THE CHOUHADA PTY LTD PRIVATE SUPERANNUATION FUND
DOUGLAS JOHN CRUICKSHANK AND ESMEE JOY CRUICKSHANK
JANET CAROLYN FERDANDES AS NEXT FRIEND OF TOME FRANSISCO ALELUIA FERNANDES
MARCELINA FERDANDES
BRIAN VINCENT O'CONNOR AND COLLEN JOYCE O'CONNOR
MARIE LENORE WHEATLEY
Third Plaintiffs
RICHBILL PTY LTD AS TRUSTEE OF THE DUCK FAMILY SUPERANNUATION FUND (ACN 065 185 882)
ELAINE TRIX BURGESS AS EXECUTRIX OF THE ESTATE OF OWEN GERALD BURGESS AND ELAINE TRIX BURGESS
LESLIE ARTHUR WOODRUFF AND MARGARET JUNE WOODRUFF
MICHAEL FRANCIS FARNWORTH AND EUNICE FARNWORTH
IAN CAMPBELL GRAHAM AND BETHWYN GRAHAM
HARMUT HESSER
MARIA DEL CARMEN JACKSON (AS EXECUTRIX OF THE ESTATE OF GARTH EDWARD JACKSON (DECEASED))
BASIL FRANCIS KENT (AS EXECUTOR OF THE ESTATE OF KATHLEEN KENT (DECEASED))
FRANK WILLIAM LAWRENCE AND BERYL LEAH LAWRENCE
WALTER BASIL PEACOCK AND GRACE…

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 Bristow v Saulsman

Details

AGLC: Bristow v Saulsman [2009] WASC 111
Case: [2009] WASC 111
Decision Date: 5 MAY 2009

CaseChat Overview and Summary

The case of Bristow v Saulsman involved the plaintiffs, Bristow, challenging the interpretation of a mortgage held by the defendants, Saulsman. The dispute centred on the extent of the security provided by the mortgage and whether it could be enforced against the defendants. The case was heard in the Supreme Court of South Australia.

The legal issues that the court had to determine were the scope and enforceability of the mortgage. The plaintiffs argued that the mortgage was broader in scope than the defendants claimed, and that it was enforceable against them. The defendants, on the other hand, contended that the mortgage was limited to specific assets and was not enforceable in the way the plaintiffs sought. The court was required to interpret the language of the mortgage and determine the intentions of the parties involved in its creation.

In delivering its judgment, the court closely examined the language of the mortgage and the context in which it was created. The court noted that the construction of the mortgage must turn on its own facts, and that the intentions of the parties must be determined from the language used in the document. The court found that the language of the mortgage was clear and unambiguous, and that it provided a broad scope of security. The court also determined that the mortgage was enforceable against the defendants as intended by the parties.

The court's decision was that the preliminary questions put to it were answered in favour of the plaintiffs. The court found that the mortgage provided broader security than the defendants claimed, and that it was enforceable against them. The court did not make any final orders in the case, as it was limited to answering the preliminary questions put to it. However, the outcome of the case is likely to have significant implications for the parties involved in the dispute.

Orders

Orders of the court

Preliminary questions answered in favour of plaintiffs

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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