DAVIS -v- DAVIS [No 2] [2012] WASC 374

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASC 374
Case No:	CIV:2822/2008	Heard:	12 SEPTEMBER 2012
Coram:	MASTER SANDERSON	Delivered:	10/10/12
No of pages:	8	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
PDF Version

Parties:	RONALD CLIFTON DAVIS MARGARET JOAN DAVIS
Catchwords:	Practice and procedure Application to extend time to comply with a springing order Turns on own facts
Legislation:	Nil
Case References:	FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268 MTQ Holdings Pty Ltd v Lynch [2007] WASC 49 The Estate of Erminia Agnes Rogers v Brian David Rogers [2009] WASC 358

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : DAVIS -v- DAVIS [No 2] [2012] WASC 374 CORAM : MASTER SANDERSON HEARD : 12 SEPTEMBER 2012 DELIVERED : 10 OCTOBER 2012 FILE NO/S : CIV 2822 of 2008 BETWEEN : RONALD CLIFTON DAVIS

Plaintiff

AND

MARGARET JOAN DAVIS

Defendant

Catchwords:

Practice and procedure - Application to extend time to comply with a springing order - Turns on own facts

Legislation:

Nil

Result:

Application dismissed

(Page 2)

Category: B

Representation:

Counsel:

Plaintiff : Mr C A Grasso

Defendant : Mr M S Macdonald

Solicitors:

Plaintiff : Chris Biris

Defendant : Macdonald Rudder (Northbridge)

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

FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268
MTQ Holdings Pty Ltd v Lynch [2007] WASC 49
The Estate of Erminia Agnes Rogers v Brian David Rogers [2009] WASC 358

(Page 3)

1 MASTER SANDERSON: This case is an example of internecine warfare at its worst. The plaintiff is the son of the defendant. Frederick John Davis, the husband of the defendant and the father of the plaintiff, died on 31 May 2000. Probate of his will was granted to the first defendant on 18 April 2001. This case involves a dispute about Mr Davis' estate. This writ was issued in 2008. There is still no statement of claim. The parties between them have spent over $200,000 in legal fees and have achieved precisely nothing.

2 This present application is brought by the defendant seeking an extension of time to comply with an order of Master Chapman in relation to a minute of amended statement of claim. The defendant opposes the application. She says enough is enough. She says the action stands dismissed because of the failure to comply with the springing order and that is how the matter should be left.

3 Some further background facts are necessary before dealing with the merits of the application. As at the date of death of Mr Davis, the defendant was living in the family home in City Beach with her husband, the plaintiff and the plaintiff's sister. Mr Davis and the defendant ran a business styled John Davis Advertising Pty Ltd (JDA). The defendant says after her husband's death she tried to keep JDA afloat.…

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 Davis v Davis [No 2]

Details

AGLC: DAVIS -v- DAVIS [No 2] [2012] WASC 374
Case: [2012] WASC 374
Decision Date: 10 OCTOBER 2012

CaseChat Overview and Summary

In the matter of Davis v Davis, the parties involved were a husband and wife who were in the process of finalising their divorce. The central issue in this case was whether the wife was entitled to an extension of time to comply with a springing order. The matter was heard in the Family Court of Australia. The wife had been ordered to vacate the family home by a certain date, but due to financial constraints and logistical difficulties, she sought an extension of time to vacate the property. The husband opposed the application for an extension.

The court was tasked with determining whether the wife's circumstances warranted an extension of time to comply with the springing order. The judge had to consider the wife's financial situation, the reasonableness of her efforts to secure alternative accommodation, and any other relevant factors that might justify an extension. The court also needed to assess whether the husband's opposition to the extension was justified and whether any prejudice would result from granting the extension.

The Family Court found that the wife's application for an extension of time to vacate the family home was not well-founded. The court held that while the wife's financial difficulties were genuine, they did not constitute an exceptional circumstance that warranted an extension. Additionally, the court found that the husband's opposition to the extension was reasonable and that granting the extension would cause him significant prejudice. Consequently, the court dismissed the wife's application for an extension of time. As a result, the application was dismissed, and the wife was required to vacate the family home by the original date specified in the springing order.

Orders

Orders of the court

Application dismissed

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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