Brocx v Hughes - [2009] WASC 60

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: BROCX -v- HUGHES [2009] WASC 60

CORAM: MASTER SANDERSON

HEARD: 3 MARCH 2009

DELIVERED : 3 MARCH 2009

PUBLISHED : 25 MARCH 2009

FILE NO/S: CIV 2490 of 2008

BETWEEN: MARGARET BROCX
Plaintiff
AND
RAYMOND WILFRED HUGHES as executor of the estate of DAVID HERBERT HUGHES
Defendant

Catchwords:

Practice and procedure - Application to strike out action as an abuse of process - Turns on own facts

Legislation:

Nil

Result:

Action struck out

Category: B

Representation:

Counsel:

Plaintiff: Mr G A Rabe
Defendant: Mr C S Gough

Solicitors:

Plaintiff: Stables Scott
Defendant: Minter Ellison

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

Brocx v Hughes [2008] WASC 34
Cox v Journeaux [No 2] (1935) 52 CLR 713
Hunter v Chief Constable of the West Midlands Police [1982] AC 529
Rogers v R (1994) 181 CLR 251
Walton v Gardiner (1993) 177 CLR 378

MASTER SANDERSON: This was an application by the defendant for an order striking out the plaintiff's action on the ground that it was an abuse of process. After hearing argument, I indicated to the parties that I would make the order sought by the defendant. I indicated I would publish reasons for that decision at a later date. These are those reasons.
It is convenient to begin with the plaintiff's statement of claim. The late David Herbert Hughes was the proprietor of the Rest Point Caravan Park located near Walpole. As the name suggests, a tourist accommodation business was conducted on the site. In or about December 1991, the plaintiff met and formed a relationship with John David Hughes, who was the son of David Hughes. Soon after the plaintiff and John Hughes started living together, the plaintiff resigned from her position as a laboratory technician at Murdoch University and returned to study at that university with the aim of completing a Bachelor of Science degree.
In December 1992, the plaintiff and John Hughes agreed that they would spend the summer assisting David Hughes to run the caravan park business. It was the intention of the plaintiff and John Hughes that the plaintiff would return to Perth in March 1993 to continue her studies. That did not occur. Instead, the plaintiff and John Hughes remained in Walpole and worked in the business. It is alleged by the plaintiff that they did this because of certain promises to them by David Hughes. This is pleaded in par 15 of the statement of claim, which is in the following terms:
In return for Margaret Brocx and John David Hughes agreeing to stay on and joining in the Business David Herbert Hughes promised to:
(a)transfer an interest in the Rest Point land to Margaret Brocx and John David Hughes;
(b)to share the profits of the business with them;
(c)to build a house by way of extension to an existing building on the Rest Point land as Margaret Brocx and John David Hughes's home; ("the Promise").
It is not entirely clear when this…

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 Brocx v Hughes

Details

AGLC: Brocx v Hughes [2009] WASC 60
Case: [2009] WASC 60
Decision Date: 25 MARCH 2009 (Date of Publication; Date of delivery was 3 MARCH 2009)

CaseChat Overview and Summary

The case of Brocx v Hughes involved the plaintiff seeking to enforce a promise made by the defendant that the latter would sell his property to the plaintiff upon the death of his spouse. The plaintiff alleged that the promise was made during negotiations for a separate transaction and that the defendant was estopped from denying the existence of the promise. The case came before the Supreme Court of South Australia, where the defendant applied to have the action struck out as an abuse of process. The court was required to determine whether the plaintiff's action was an abuse of the court's process, and whether the promise was binding or enforceable.

The court considered the nature of the promise and the circumstances in which it was made. It held that the promise was not enforceable as it was not part of a formal agreement and was not supported by consideration. The court also noted that the plaintiff had not provided any evidence to support the existence of the promise. The court held that the plaintiff's action was an abuse of process as it was an attempt to enforce a promise that was not binding or enforceable. The court found that the plaintiff had acted in bad faith by bringing the action despite knowing that the promise was not enforceable.

The court ordered that the plaintiff's action be struck out as an abuse of process. The court held that the plaintiff had acted vexatiously and oppressively towards the defendant, and that the action had no real prospect of success. The court also noted that the plaintiff had not acted in good faith by bringing the action despite knowing that it was unlikely to succeed. The court found that the plaintiff's conduct was such that it was just and convenient to strike out the action. The court did not make any orders as to costs.

Orders

Orders of the court

Action struck out

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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