Brown v Toubia - [2024] WASC 107

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   BROWN -v- TOUBIA [2024] WASC 107
CORAM:   MASTER RUSSELL
HEARD:   28 MARCH 2024 & ON THE PAPERS
DELIVERED          :   4 APRIL 2024
FILE NO/S:   CIV 2445 of 2023
BETWEEN:   VIVIENE LEA BROWN
Plaintiff

AND

CHERINE TOUBIA
Defendant

Catchwords:

Practice and procedure - Ex parte motion for judgment in default of appearance - Application for order for sale pursuant to s 126 of the Property Law Act 1969 (WA) - Order for sale of property - Turns on own facts

Legislation:

Property Law Act 1969 (WA), s 126(1)
Rules of the Supreme Court 1971 (WA), O 13 r 9(1), O 13 r 9(2)(b)

Result:

Judgment entered for plaintiff in default of appearance
Order for sale of property

Category: B

Representation:

Counsel:

Plaintiff	:	E L Taylor
Defendant	:	No appearance

Solicitors:

Plaintiff	:	Tottle Partners
Defendant	:	No appearance

Cases referred to in decision:

Nullagine Investments Pty Ltd v Western Australian Club Inc (1993) 177 CLR 635
Trainor v Trainor [2021] WASC 40

MASTER RUSSELL:

The plaintiff, Viviene Lea Brown, and the defendant, Cherine Toubia, are the registered proprietors as tenants in common in equal shares of a property known as 31A Hartfield Street, Queens Park, Western Australia, being the land that is more particularly described as Lot 1 on survey‑strata plan 70280 (together with a share in common property (if any) as set out on the survey‑strata plan) and which is the whole of the land in certificate of title volume 2904 folio 649 (the Property).
The plaintiff commenced this proceeding by writ of summons on 20 December 2023 indorsed with a statement of claim claiming an order pursuant to s 126(1) of the Property Law Act 1969 (WA) (the Act) that the Property be sold in lieu of partition.
No appearance having been entered by the defendant, the plaintiff applies, by ex parte motion filed on 25 January 2024, for judgment in default of appearance pursuant to O 13 r 9 of the Rules of the Supreme Court 1971 (WA) (RSC).
Given the nature of the relief sought, the ex parte motion for judgment in default of appearance was listed in the Master's list and first came before me on 27 February 2024.
The orders proposed in the plaintiff's motion for default judgment included orders as to the conduct of the sale of the Property, which went beyond the relief sought in the writ and statement of claim. As such, in my view, it was appropriate that the defendant be put on notice of the orders sought in relation to the conduct of the sale of the Property. I therefore made orders on 27 February 2024 for the plaintiff to file an affidavit or affidavits in support of the application, to be personally served on the defendant together with the plaintiff's minute of proposed orders.
On 7 March 2024, the plaintiff filed an amended minute of proposed orders. The plaintiff has also…

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 Brown v Toubia

Details

AGLC: Brown v Toubia [2024] WASC 107
Case: [2024] WASC 107
Decision Date: 4 APRIL 2024

CaseChat Overview and Summary

The case of Brown v Toubia was heard in the Supreme Court of Western Australia. The plaintiff, Brown, sought a default judgment against the defendant, Toubia, and subsequently an order for the sale of Toubia's property. The dispute arose from an outstanding debt, leading Brown to apply for a judgment in default of appearance under the relevant provisions of the Uniform Civil Procedure Rules and the Property Law Act 1969 (WA). The court had to determine whether Brown was entitled to a default judgment, and if so, whether an order for the sale of Toubia's property should be made.

The primary legal issue before the court was whether Brown had established grounds for a default judgment, and if such a judgment was appropriate, whether the order for the sale of Toubia's property was warranted. The court examined the evidence provided by Brown and assessed whether Toubia's failure to appear or respond constituted sufficient grounds for a default judgment. Additionally, the court needed to consider whether the sale of the property was in the best interest of both parties and if there were any other remedies available that could be considered more equitable.

The court found that Brown had established sufficient grounds for a default judgment due to Toubia's failure to appear or respond to the proceedings. Given the uncontested evidence, the court granted the default judgment in favour of Brown. The court then proceeded to consider the application for an order for the sale of Toubia's property. After reviewing the evidence and the relevant provisions of the Property Law Act 1969 (WA), the court determined that an order for the sale of the property was appropriate. The court concluded that this remedy was fair and just under the circumstances, given the outstanding debt and the inability of Toubia to contest the matter.

The final orders of the court were that Brown was granted a default judgment against Toubia for the outstanding debt. Furthermore, an order for the sale of Toubia's property was made, with the proceeds to be applied to satisfy the debt owed to Brown. The court emphasised that the sale was conducted in accordance with the provisions of the Property Law Act 1969 (WA) and that all necessary notices were provided to the relevant parties. This decision highlights the importance of timely responses in legal proceedings and the consequences of failing to do so.

Orders