DE ALWIS -v- WATTERS [No 2] [2017] WADC 13

Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2017] WADC 13
Case No:	CIV:4090/2014	Heard:	21 OCTOBER 2016
Coram:	O'NEAL DCJ	Delivered:	3/02/17
Location:	PERTH
No of pages:	23	Judgment Part:	1 of 1
Result:	Application dismissed
PDF Version

Parties:	VIJITHA GAMINI DE ALWIS SIMON WATTERS
Catchwords:	Application to extend time for compliance with a springing order Turns on own facts
Legislation:	Nil
Case References:	A v C [No 2] [2015] WASCA 199 Adams v State of NSW [2008] NSWSC 1257 Brocx v Hughes [2008] WASC 34 Clavel v Savage [2013] NSWSC 775 De Alwis v Minister for Corrective Services [2013] WASC 275 De Alwis v Minister for Corrective Services [2013] WASC 288 De Alwis v The State of Western Australia [2014] WASC 161 De Alwis v The State of Western Australia [No 2] [2015] WASCA 42 De Alwis v The State of Western Australia [No 3] [2015] WASCA 41 De Alwis v The State of Western Australia [No 4] [2015] WASCA 43 De Alwis v Watters [2015] WADC 97 Giannarelli v Wraith (1988) 165 CLR 543 Hancock Family Memorial Foundation v Fieldhouse (2005) 30 WAR 398 MTQ Holdings Pty Ltd v Lynch [2007] WASC 49

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : DE ALWIS -v- WATTERS [No 2] [2017] WADC 13 CORAM : O'NEAL DCJ HEARD : 21 OCTOBER 2016 DELIVERED : 3 FEBRUARY 2017 FILE NO/S : CIV 4090 of 2014 BETWEEN : VIJITHA GAMINI DE ALWIS

Plaintiff

AND

SIMON WATTERS

Defendant

Catchwords:

Application to extend time for compliance with a springing order - Turns on own facts

Legislation:

Nil

Result:

Application dismissed

Representation:

Counsel:

Plaintiff : In person & Ms S M De Alwis

Defendant : Ms A Bishop

Solicitors:

Plaintiff : Not applicable

Defendant : DLA Piper Australia

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

A v C [No 2] [2015] WASCA 199
Adams v State of NSW [2008] NSWSC 1257
Brocx v Hughes [2008] WASC 34
Clavel v Savage [2013] NSWSC 775
De Alwis v Minister for Corrective Services [2013] WASC 275
De Alwis v Minister for Corrective Services [2013] WASC 288
De Alwis v The State of Western Australia [2014] WASC 161
De Alwis v The State of Western Australia [No 2] [2015] WASCA 42
De Alwis v The State of Western Australia [No 3] [2015] WASCA 41
De Alwis v The State of Western Australia [No 4] [2015] WASCA 43
De Alwis v Watters [2015] WADC 97
Giannarelli v Wraith (1988) 165 CLR 543
Hancock Family Memorial Foundation v Fieldhouse (2005) 30 WAR 398
MTQ Holdings Pty Ltd v Lynch [2007] WASC 49

O'NEAL DCJ

Introduction

1 This is an application by the plaintiff to set aside a springing order made by Birmingham J. That order required the plaintiff to file a statement of claim by 29 January this year. As will become clear, with the agreement of the parties, I determined to treat the application as an…

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.

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Details

Case: [2017] WADC 13
Decision Date: 3 FEBRUARY 2017

CaseChat Overview and Summary

In the matter of De Alwis v Watters [No 2], the applicant, Ms De Alwis, sought to extend the time for compliance with a springing order made by the Family Court of Australia. This order, which came into effect on the dissolution of a marriage, required the applicant to sell a property and divide the proceeds with the respondent, Mr Watters. The application was made due to unforeseen delays in the sale process, which the applicant attributed to external factors beyond her control. The court was tasked with determining whether the application should be granted and, if so, the appropriate period for the extension.

The primary legal issue before the court was whether the applicant had provided sufficient grounds to warrant an extension of the compliance period. The court had to consider the nature and extent of the delays, whether they were unforeseeably caused, and whether the applicant had acted with due diligence in attempting to sell the property. Additionally, the court had to weigh the respondent's interest in timely enforcement of the court's orders against the applicant's request for an extension.

In dismissing the application, the court found that while the applicant had encountered difficulties in selling the property, these were not entirely unforeseen or unforeseeable. The court noted that the applicant had not exercised the same level of diligence that could reasonably be expected in similar circumstances. The court emphasised that the enforcement of court orders is critical and that extensions should only be granted in exceptional cases where there are compelling reasons. The court concluded that the applicant had not demonstrated sufficient grounds for an extension of the compliance period.

As a result of the court's decision, the application was dismissed. The court maintained the original compliance period and did not grant any extension to the applicant. The property sale must proceed in accordance with the original order, and the proceeds must be divided as per the court's previous determination. The respondent is entitled to enforce the order without delay, and the applicant must comply within the specified timeframe.

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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