DAVIES v DAVIES [No 2] - [2010] WASCA 151

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: DAVIES -v- DAVIES [No 2] [2010] WASCA 151

CORAM: NEWNES JA
MURPHY JA

HEARD: 10 MAY 2010

DELIVERED : 3 AUGUST 2010

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 - Injunction - Balance of convenience - Application to extend operation of caveat or for injunction to restrain respondent from dealing with land refused by primary judge - Alleged constructive trust in 1995 - Appellant's prospects of success weak - Failure by appellant to pursue underlying claim for long period - Turns on own facts

Legislation:

Administration Act 1903 (WA), s 14
Civil Judgments Enforcement Act 2004 (WA), s 15
Transfer of Land Act 1893 (WA), s 138B, s 138D(1)

Result:

Appeal 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):

Bashford v Bashford [2008] WASC 138
Davies v Davies [2009] WASCA 238
Gangemi v Gangemi [2009] WASC 195
Navarac Pty Ltd v Moondancer Holdings Pty Ltd [2009] WASCA 95
Ramage v Waclaw (1988) 12 NSWLR 84

JUDGMENT OF THE COURT: This is an appeal against a judgment of Kenneth Martin J of 16 October 2009, in which his Honour dismissed the appellant's application to extend the operation of a caveat over certain land and an alternative application by the appellant for an injunction restraining the first respondent from transferring, encumbering or otherwise dealing with the land until further order.

Background

The application arose out of a dispute relating to the administration of the estate of the appellant's late father, Sidney Davies, who died intestate in 2003. In view of the parties' common surname, we will refer to the late Sidney Davies as Sidney. The appellant is Sidney's son by his first marriage. There are four other children of that marriage. The first respondent was the wife of Sidney by his second marriage.
Before turning to the relevant facts, we should note that it was common ground that, pursuant to s 14 of the Administration Act 1903 (WA), the first respondent was entitled to the sum of $50,000 from Sidney's estate (and interest at 5% on that sum from the date of death of Sidney until payment) and to one-third of the residue. The appellant and his siblings were entitled to the remaining two‑thirds of the residue in equal shares.
The material facts, as they appear from the affidavits filed in relation to the application before the primary judge, are as follows. Sidney and the first respondent were married in December 1985. By the beginning of 1995, they…

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 [No 2]

Details

AGLC: DAVIES v DAVIES [No 2] [2010] WASCA 151
Case: [2010] WASCA 151
Decision Date: 3 AUGUST 2010

CaseChat Overview and Summary

The appellant, Davies, appeals against a judgment of Kenneth Martin J which dismissed his application to extend the operation of a caveat over certain land and an alternative application for an injunction restraining the first respondent from transferring, encumbering or otherwise dealing with the land until further order. The application arose out of a dispute relating to the administration of the estate of the appellant's late father, Sidney Davies, who died intestate in 2003. The appellant contends that a constructive trust should be imposed over the land in Mullaloo and Kallaroo, which was held by his father and the first respondent, his father's second wife, as joint tenants at the time of separation in 1995. The court had to determine whether the appellant had a sufficient prospect of success on the merits of his claim to warrant the granting of an injunction and whether the balance of convenience favoured the grant of an injunction.

The court held that the appellant's prospects of success on the merits of his claim were weak. The appellant had failed to pursue his underlying claim for a long period of time, which turned on its own facts. The court found that the appellant had not established a sufficient case for a constructive trust to be imposed over the land in Mullaloo and Kallaroo. The court also held that the balance of convenience did not favour the grant of an injunction. The first respondent had an entitlement to the sum of $50,000 from Sidney's estate and to one-third of the residue, and the appellant and his siblings were entitled to the remaining two-thirds of the residue in equal shares. The court found that the first respondent had a greater interest in the land than the appellant.

The court dismissed the appeal and affirmed the judgment of Kenneth Martin J. The appellant's application to extend the operation of a caveat over certain land and an alternative application for an injunction restraining the first respondent from transferring, encumbering or otherwise dealing with the land until further order were dismissed. The court held that the appellant had not established a sufficient case for a constructive trust to be imposed over the land in Mullaloo and Kallaroo, and that the balance of convenience did not favour the grant of an injunction. The court found that the first respondent had a greater interest in the land than the appellant.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

JUDGMENT OF THE COURT: This is an appeal against a judgment of Kenneth Martin J of 16 October 2009, in which his Honour dismissed the appellant's application to extend the operation of a caveat over certain land and an alternative application by the appellant for an injunction restraining the first respondent from transferring, encumbering or otherwise dealing with the land until further order. The application arose out of a dispute relating to the administration of the estate of the appellant's late father, Sidney Davies, who died intestate in 2003. In view of the parties' common surname, we will refer to the late Sidney Davies as Sidney. The appellant is Sidney's son by his first marriage. There are four other children of that marriage. The first respondent was the wife of Sidney by his second marriage. Before turning to the relevant facts, we should note that it was common ground that, pursuant to s 14 of the Administration Act 1903 (WA), the first respondent was entitled to the sum of $50,000 from Sidney's estate (and interest at 5% on that sum from the date of death of Sidney until payment) and to one-third of the residue. The appellant and his siblings were entitled to the remaining two‑thirds of the residue in equal shares. The material facts, as they appear from the affidavits filed in relation to the application before the primary judge, are as follows. Sidney and the first respondent were married in December 1985. By the beginning of 1995, they were the owners, as joint tenants, of a property in Gnobar Way, Mullaloo in which they lived; a property in Dampier Avenue, Mullaloo; and a property in Oleander Way, Kallaroo. At that time they were experiencing marital difficulties and agreed to separate. In that connection, they purchased a property in Coyle Road, Craigie which was registered in the first respondent's name alone, although the documents relating to a loan obtained for the purchase were signed by both Sidney and the first respondent. At about the same time, a draft separation agreement was prepared by solicitors, on Sidney's instructions. The draft agreement provided for the transfer of the first respondent's interest in a company and a family trust to Sidney and the assumption by Sidney of any taxation or other liabilities of the first respondent in relation to those entities, and for a division of household furniture and effects. Relevantly for present purposes, the draft agreement also provided that the first respondent was to transfer to Sidney her interest in the Gnobar Way, Dampier Avenue and Oleander Way properties, and Sidney was to transfer to the first respondent any interest he had in the Coyle Road property. Under the draft agreement Sidney was to indemnify the first respondent for any liability she had under the mortgages over the various properties, including the Coyle Road property. The draft agreement was never executed. The first respondent says she objected to its terms when Sidney showed it to her and he did not pursue the matter thereafter. The first respondent says that she and Sidney reconciled shortly afterwards, although they maintained separate residences.

Ratio Decidendi

Legal Principle Established

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