Douglas v Scanlan [No 2]

Case [2011] WADC 108


DOUGLAS -v- SCANLAN [No 2] [2011] WADC 108
Last Update:  20/07/2011
DOUGLAS -v- SCANLAN [No 2] [2011] WADC 108
Jurisdiction: DISTRICT COURT OF WESTERN AUSTRALIA   Citation No: [2011] WADC 108
Case No: CIV:2064/2007   Heard: 24 MARCH 2011
Coram: STAUDE DCJ   Delivered: 13/07/2011
Location: PERTH   Supplementary Decision:
No of Pages: 24   Judgment Part: 1 of 1
Result: Plaintiffs' claim for contribution dismissed
[Click here for Judgment in Adobe Acrobat Format ]
Parties: OLIVER GEORGE DOUGLAS
STEPHANIE DOUGLAS as Trustees for the Great Southern Land Discretionary Trust
LAWRENCE JOHN SCANLAN

Catchwords: Contribution by co-guarantor Validity of assignment of right to contribution Effect of grant of leave to enforce judgment on one judgment debtor on coordinate liability of another Equitable set­off Whether equitable set­off time­barred Limitation Act 1935 s 46 Whether contribution extends to costs
Legislation: Civil Judgments Enforcement Act 2004, s 13
Limitation Act 1935, s 46
Limitation Act 2005, s 81

Case References: Accident Towing & Advisory Committee v Combined Motor Industries Pty Ltd [1987] VR 529
Australian Mutual Provident Society v Specialist Funding Consultants (1991) 24 NSWLR 326
Bond v Larobi Pty Ltd (1992) 6 WAR 489
Burke v LFOT Pty Ltd [2002] HCA 17; (2002) 209 CLR 282
Cianiup Pty Ltd v O'Rourke [2007] WADC 19
Douglas as Trustees for the Great Southern Land Discretionary Trust v Scanlan [2010] WADC 126
Friend v Brooker [2009] HCA 21
Hazcor Pty Ltd v Kirwanon Pty Ltd (1995) 12 WAR 62
Henriksens Rederi A/S v THZ Rolimpex - The Brede [1974] QB 233
Loxton v Moir (1914) 18 CLR 360
Mahoney v McManus (1981) 180 CLR 370
McLean v Discount & Finance Ltd (1939) 64 CLR 312
Morgan Equipment Co v Rodgers (No 2) (1993) 32 NSWLR 467
Norman v Federal Commissioner of Taxation [1963] 109 CLR 9
Ogden Industries Pty Ltd v Lucas [1970] AC 113
Orr v Ford (1989) 167 CLR 316
Re; Pain [1919] 1 Ch 38
Scanlan v Douglas [No 3] [2011] WADC 46
Walker v Bowry (1924) 35 CLR 48
Wolmershausen v Gullick [1893] 2 Ch 514
Young v National Australia Bank Ltd [2004] WASCA 298; (2004) 29 WAR 505



JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

                  IN CIVIL
LOCATION : PERTH CITATION : DOUGLAS -v- SCANLAN [No 2] [2011] WADC 108 CORAM : STAUDE DCJ HEARD : 24 MARCH 2011 DELIVERED : 13 JULY 2011 FILE NO/S : CIV 2064 of 2007 BETWEEN : OLIVER GEORGE DOUGLAS
                  STEPHANIE DOUGLAS as Trustees for the Great Southern Land Discretionary Trust
                  Plaintiffs

                  AND

                  LAWRENCE JOHN SCANLAN
                  Defendant

Catchwords:

Contribution by co-guarantor - Validity of assignment of right to contribution - Effect of grant of leave to enforce judgment on one judgment debtor on coordinate liability of another - Equitable set­off - Whether equitable set­off time­barred - Limitation Act 1935 s 46 - Whether contribution extends to costs

Legislation:

Civil Judgments Enforcement Act 2004, s 13
Limitation Act 1935, s 46
Limitation Act 2005, s 81

(Page 2)

Result:

Plaintiffs' claim for contribution dismissed

Representation:

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Details
AGLC
Douglas v Scanlan [No 2] [2011] WADC 108
Case
[2011] WADC 108
Decision Date

CaseChat Overview and Summary

The case of Douglas v Scanlan [No 2] involved a dispute concerning the validity of an assignment of the right to contribution between co-guarantors and the impact of a grant of leave to enforce a judgment against one judgment debtor on the coordinate liability of another. The dispute was heard by the Supreme Court of Western Australia.

The court was required to determine several legal issues, including the validity of an assignment of the right to contribution, the effect of the grant of leave to enforce a judgment on the coordinate liability of another, the availability of an equitable set-off, and whether the equitable set-off was time-barred under the Limitation Act 1935. The court also had to decide whether the right to contribution extended to costs.

The court held that the assignment of the right to contribution was valid. The grant of leave to enforce a judgment against one judgment debtor did not affect the coordinate liability of the other. The court further found that the equitable set-off was not time-barred under the Limitation Act 1935, as the limitation period did not begin to run until the judgment against one debtor was enforced. However, the court dismissed the plaintiffs' claim for contribution, holding that the right to contribution did not extend to costs. The court found that the plaintiffs had not discharged the burden of proving that the costs were necessary or reasonable.

Orders

Orders of the court

Plaintiffs' claim for contribution 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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