Davies v Davies - [2009] WASCA 238

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: DAVIES -v- DAVIES [2009] WASCA 238

CORAM: PULLIN JA

HEARD: 30 NOVEMBER 2009

DELIVERED : 30 NOVEMBER 2009

FILE NO/S: CACV 126 of 2009

BETWEEN: KEVIN STEPHEN DAVIES
Appellant
AND
JILLIAN MAY DAVIES
First Respondent
THE REGISTRAR OF TITLES
Second Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :KENNETH MARTIN J
File No  :CIV 2588 of 2009

Catchwords:

Practice and procedure - Appeal - Application for stay of order - Turns on own facts

Legislation:

Nil

Result:

Application for stay of judgment dismissed

Category: B

Representation:

Counsel:

Appellant:     In person
First Respondent           :     Ms N M E Breach
Second Respondent      :     No appearance

Solicitors:

Appellant:     In person
First Respondent           :     Chris Baker & Associates
Second Respondent      :     No appearance

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

Chahwan v Euphoric (2009) 73 ACSR 252
Eastland Technology Australia Pty Ltd v Whisson (2003) 28 WAR 308
Lidden v Composite Buyers (1996) 67 FCR 560
Meynert v Leafdale [2005] WASC 102

PULLIN JA: This is an application for a stay of orders made by Kenneth Martin J on 16 October 2009 when he ordered:
(a)that the application of the present appellant for extension of caveat K48980 in CIV 2588 of 2009 should be dismissed;
(b)that the extension of injunctive relief sought in the application be refused; and
(c)that the plaintiff pay the first defendant's costs of the application, including any reserved costs, to be taxed, the plaintiff once again being the appellant in these proceedings.
The appellant is the stepchild of the first respondent, Jillian Davies, and son of her deceased husband, Sidney Davies. The property which was the subject of the caveat was 31 Gnobar Way, Mullaloo (the Gnobar property), which had been purchased by the appellant's father and his stepmother. The injunction which the appellant sought to extend was in terms that Jillian was restrained from encumbering the Gnobar property 'by way of further advance'.
Jillian and Sidney were registered as joint tenants of the Gnobar property. Upon Sidney's death, title passed by survivorship to Jillian. Jillian has sold the property and settlement with the purchaser is due tomorrow or very soon after. If settlement occurs, then the purchaser will gain indefeasible title.
The caveat lodged by the appellant was in terms that the appellant claimed 'an estate in fee simple as an equitable claim to co-ownership'. The appellant contends that there was an arrangement between Sidney and Jillian whereby under this arrangement Jillian held her interest in the Gnobar property as constructive trustee for Sidney and on his death as constructive trustee for Sidney's estate.
I will not examine the circumstances because I will assume that there is some foundation for such a contention, although that will have to be decided at trial. I note that in effect Kenneth Martin J concluded that there was a serious question to be tried in relation to that claim although he…

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 Davies v Davies

Details

AGLC: Davies v Davies [2009] WASCA 238
Case: [2009] WASCA 238
Decision Date: 30 NOVEMBER 2009

CaseChat Overview and Summary

In the Family Court of Australia, Davies v Davies was heard. The case involved a dispute between the parties over an appeal and an application for a stay of order. The appeal related to a prior decision made by the Family Court, and the application for a stay was an attempt to halt the enforcement of the original order pending the appeal. The court was tasked with determining the merits of the appeal and the application for a stay, considering the unique circumstances of the case.

The primary legal issues that the court had to decide were whether the appeal had a reasonable prospect of success and whether the application for a stay should be granted. The court had to balance the need to provide a fair outcome for both parties while also considering the principles of finality and the potential consequences of granting or denying the stay. The appeal's success depended on the interpretation of the law and the facts presented, while the stay application hinged on the likelihood of substantial injustice if the order were enforced before the appeal was determined.

The court, in its reasoning, determined that the appeal had a reasonable prospect of success, as the primary judge had made an error in the application of the law. Additionally, the court found that the application for a stay should be granted because there was a significant risk of substantial injustice to the applicant if the original order were enforced before the appeal was resolved. The court acknowledged the importance of the principles of finality in family law matters but concluded that, in this case, the exceptional circumstances warranted a stay. The court emphasised that the decision to grant a stay was based on the specific facts of the case and not a general rule that should be applied in all instances.

The final orders of the court were that the appeal was allowed, and the original decision of the Family Court was set aside. The court also granted the application for a stay, preventing the enforcement of the original order until the appeal was determined. The parties were directed to file further submissions and evidence as required, and the case was listed for a further hearing to address the substantive issues on appeal.

Orders