ELWOOD -v- GOODMAN [2014] WADC 143

Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2014] WADC 143
Case No:	CIV:786/2013	Heard:	3 OCTOBER 2014
Coram:	DEPUTY REGISTRAR KUBACZ	Delivered:	24/10/14
Location:	PERTH
No of pages:	15	Judgment Part:	1 of 1
Result:	Application dismissed
PDF Version

Parties:	ANTONY JOHN ELWOOD TIMOTHY DAVID GOODMAN
Catchwords:	Practice and procedure Inactive cases list Case dismissed under r 44G District Court Rules 2005 Validity of notice pursuant to r 44D Costs
Legislation:	District Court Act 1969 (WA) District Court Rules 2005 (WA) Supreme Court Rules 1971 (WA)
Case References:	Jeruth Pty Ltd v Haybale Pty Ltd [2004] VSC 319 Musolino v Osmond [1996] SADC 3526 Ruby v Doric Constructions (Australia) Pty Ltd [2013] WASCA 94 The Owners of Riviera Apartments (Strata Plan 35851) v Wembley Lakes Estate Pty Ltd [2009] WASC 37

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : ELWOOD -v- GOODMAN [2014] WADC 143 CORAM : DEPUTY REGISTRAR KUBACZ HEARD : 3 OCTOBER 2014 DELIVERED : 24 OCTOBER 2014 FILE NO/S : CIV 786 of 2013 BETWEEN : ANTONY JOHN ELWOOD

Plaintiff

AND

TIMOTHY DAVID GOODMAN

Defendant

Catchwords:

Practice and procedure - Inactive cases list - Case dismissed under r 44G District Court Rules 2005 - Validity of notice pursuant to r 44D - Costs

Legislation:

District Court Act 1969 (WA)

District Court Rules 2005 (WA)
Supreme Court Rules 1971 (WA)

Result:

Application dismissed

Representation:

Counsel:

Plaintiff : Mr Kennedy

Defendant : Mr Marando

Solicitors:

Plaintiff : CS Legal

Defendant : Momentum Legal

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

Jeruth Pty Ltd v Haybale Pty Ltd [2004] VSC 319
Musolino v Osmond [1996] SADC 3526
Ruby v Doric Constructions (Australia) Pty Ltd [2013] WASCA 94
The Owners of Riviera Apartments (Strata Plan 35851) v Wembley Lakes Estate Pty Ltd [2009] WASC 37

1 DEPUTY REGISTRAR KUBACZ: This is the plaintiff's application dated 4 August 2014 for orders that the dismissal of the action pursuant to r 44G(1) of the District Court Rules 2005 (WA) (the Rules) be set aside and the action be ordered active.

2 The plaintiff's application is supported by an affidavit of Narinder Singh Jessy dated 30 June 2014, an affidavit of Timothy Wayne Kennedy dated 28 July 2014 and affidavits of Fraser Alexander Robertson dated 1 July 2014 and 28 August 2014.

3 In opposition to the application, the defendant has filed and served affidavits of Robert Lelio Marando dated 8 August 2014 and 17 September 2014.

Background

4 This matter was commenced by way of a writ of summons on 13 March 2013. In his statement of claim, the plaintiff claims, in brief, that on or about 22 February 2007 he entered into an agreement with the defendant whereby the defendant agreed to sell opals belonging to the plaintiff. The opals were subsequently given to the defendant in or about April 2007. On or about 19 December 2012, the plaintiff demanded that the defendant return the opals but the defendant refused…

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 Elwood v Goodman

Details

AGLC: Elwood v Goodman [2014] WADC 143
Case: [2014] WADC 143
Decision Date: 24 OCTOBER 2014

CaseChat Overview and Summary

The matter of Elwood v Goodman involved a dispute between the parties concerning the dismissal of a case in the District Court of New South Wales. The applicant, Elwood, sought to challenge the dismissal of their case on the basis that the notice given to them under rule 44D was invalid, and thus the dismissal was improper. The respondent, Goodman, argued that the dismissal was correctly carried out under rule 44G and that the notice was valid. The court was required to determine whether the notice provided to Elwood complied with the relevant rules and whether the dismissal of the case was justified.

The legal issues before the court involved the interpretation and application of rules 44D and 44G of the District Court Rules 2005. Specifically, the court had to examine whether the notice given to Elwood was in compliance with the requirements of rule 44D and if the dismissal of the case under rule 44G was valid. Furthermore, the court needed to consider the consequences of an improper dismissal, including the awarding of costs.

In delivering the judgment, the court held that the notice provided to Elwood was in accordance with rule 44D, and thus, the dismissal of the case under rule 44G was proper. The court found that the notice was clear, precise, and provided Elwood with sufficient information to respond to the impending dismissal. Consequently, the court dismissed Elwood's application, finding that the dismissal was justified and that there were no grounds for setting aside the dismissal or awarding costs.

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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