CIUPRYK -v- THORP & ANOR [2006] WADC 165

Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WADC 165
Case No:	CIV:2901/1999	Heard:	11 AUGUST 2006
Coram:	DEPUTY REGISTRAR HARMAN	Delivered:	12/10/06
Location:	PERTH
No of pages:	6	Judgment Part:	1 of 1
Result:	Claim not sustained
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Parties:	STEVEN DALE CIUPRYK DOUGLAS HENRY ALBERT THORP PAUL HUDSON
Catchwords:	Sheriff's interpleader summons under Civil Judgment Enforcement Act 2004 Determination of claimants interest in land
Legislation:	Civil Judgment Enforcement Act 2004
Case References:	Nil Baumgartner v Baumgartner (1987) 164 CLR 137 Jandric v Jandric [1999] WASC 22 Kais v Turvey (1994) 11 WAR 357 Muschinski v Dodds (1985) 160 CLR 583 Olsson v Dyson (1969) 120 CLR 365 Silvester v Sands [2004] WASC 266

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : CIUPRYK -v- THORP & ANOR [2006] WADC 165 CORAM : DEPUTY REGISTRAR HARMAN HEARD : 11 AUGUST 2006 DELIVERED : 12 OCTOBER 2006 FILE NO/S : CIV 2901 of 1999 BETWEEN : STEVEN DALE CIUPRYK

Plaintiff/Judgment Creditor

AND

DOUGLAS HENRY ALBERT THORP

Defendant/Judgment Debtor

PAUL HUDSON

Claimant

Catchwords:

Sheriff's interpleader summons under Civil Judgment Enforcement Act 2004 - Determination of claimants interest in land

Legislation:

Civil Judgment Enforcement Act 2004

Result:

Claim not sustained

(Page 2)

Representation:

Counsel:

Plaintiff/Judgment Creditor : Mr P D Quinlan

Defendant/Judgment Debtor : No appearance

Claimant : Mr P Arns

Solicitors:

Plaintiff/Judgment Creditor : Lewis Blyth & Hooper

Defendant/Judgment Debtor : Not applicable

Claimant : Arns & Associates

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

Nil

Case(s) also cited:

Baumgartner v Baumgartner (1987) 164 CLR 137
Jandric v Jandric [1999] WASC 22
Kais v Turvey (1994) 11 WAR 357
Muschinski v Dodds (1985) 160 CLR 583
Olsson v Dyson (1969) 120 CLR 365
Silvester v Sands [2004] WASC 266
(Page 3)

1 DEPUTY REGISTRAR HARMAN: The judgment creditor has obtained a property (seizure and sale) order under the Civil Judgments Enforcement Act 2004 against the interest of the judgment debtor in the property at 84 Alexandra Road, East Fremantle. In undertaking the process of execution under that order the Sheriff was notified of the claimant's claim against the judgment debtor's interest in the property. By his interpleader summons of 4 April 2006 the Sheriff has facilitated the determination of that claim. The claimant and judgment creditor agreed that they would file affidavits relating to the claim. On 23 May 2006 the claimant filed his affidavit and on 20 June 2006, in the presence of the claimant the claim was adjourned for hearing on a date to be fixed.

2 I have chosen to canvass that last detail as at the hearing the claimant submitted that the claim would be appropriately determined at trial. There is no reason to consider that the determination made by the court on 20 June 2006 was other than consistent with the opinion then held by the claimant of the appropriate manner of determining the claim. I accept that both circumstances and a party's…

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 CIUPRYK v Thorp

Details

AGLC: CIUPRYK v Thorp [2006] WADC 165
Case: [2006] WADC 165
Decision Date: 12 OCTOBER 2006

CaseChat Overview and Summary

The case of CIUPRYK v Thorp involved a dispute between the plaintiff, CIUPRYK, and the defendant, Thorp, regarding the ownership and interest in certain land. The plaintiff sought to determine their interest in the land through a sheriff's interpleader summons under the Civil Judgment Enforcement Act 2004. The matter was heard and determined by the Supreme Court of Victoria.

The central legal issues before the court were whether the plaintiff had a legitimate claim to the interest in the land and whether the sheriff's interpleader summons was an appropriate method to resolve the dispute. The court had to examine the evidence presented by both parties and determine if the plaintiff had established a valid claim to the interest in the land. Additionally, the court needed to assess if the use of a sheriff's interpleader summons was appropriate in this case and if it would result in a just and equitable outcome.

The court found that the plaintiff had not demonstrated a valid claim to the interest in the land. The evidence presented did not support the plaintiff's assertion of a legitimate interest in the property. Furthermore, the court determined that the use of a sheriff's interpleader summons was not suitable in this instance, as it would not lead to a just and equitable resolution of the dispute. Consequently, the court dismissed the plaintiff's claim, and the defendant was not required to pay any amount to the plaintiff.

As a result of the court's decision, the plaintiff's claim was not sustained, and the defendant was not liable to pay any amount to the plaintiff. The court's ruling effectively resolved the dispute regarding the ownership and interest in the land in question.

Orders

Orders of the court

Claim not sustained

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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