FARRELL -v- ALLREGAL ENTERPRISES PTY LTD [No 3] [2011] WASCA 247

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2011] WASCA 247
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:70/2008	Heard:	21 OCTOBER 2011
Coram:	PULLIN JA	Delivered:	11/11/11
No of pages:	18	Judgment Part:	1 of 1
Result:	CACV 70 of 2008 - Application granted CACV 101 of 2008 - Application granted CACV 1 of 2009 - Application granted
Category:	B
PDF Version

Parties:	CAROL ELIZABETH FARRELL by next friend THE PUBLIC TRUSTEE ALLREGAL ENTERPRISES PTY LTD CARPAOLO NOMINEES PTY LTD ALLREGAL ENTERPRISES PTY LTD (Mortgagee in Possession: Perpetual Ltd)
Catchwords:	Application to settle appeal under r 60 Supreme Court (Court of Appeal) Rules 2005 (WA) Whether settlement for the benefit of person under a disability Meaning of 'independent opinion' Application granted
Legislation:	Supreme Court (Court of Appeal) Rules 2005 (WA), r 60
Case References:	Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 Doyle v The Commonwealth of Australia [1985] HCA 46; (1985) 156 CLR 510 Farrell v CSL Ltd [2004] VSC 308 Murphy v Doman [2003] NSWCA 249; (2003) 58 NSWLR 51 Sosa v Carter [1978] WAR 123 Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 Wood v The Public Trustee of Western Australia (1995) 16 WAR 58

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : FARRELL -v- ALLREGAL ENTERPRISES PTY LTD [No 3] [2011] WASCA 247 CORAM : PULLIN JA HEARD : 21 OCTOBER 2011 DELIVERED : 11 NOVEMBER 2011 FILE NO/S : CACV 70 of 2008 BETWEEN : CAROL ELIZABETH FARRELL by next friend THE PUBLIC TRUSTEE

Appellant

AND

ALLREGAL ENTERPRISES PTY LTD

Respondent

FILE NO/S : CACV 101 of 2008 BETWEEN : ALLREGAL ENTERPRISES PTY LTD

First Appellant

CAROL ELIZABETH FARRELL by next friend THE PUBLIC TRUSTEE

Second Appellant

AND

CARPAOLO NOMINEES PTY LTD

Respondent

(Page 2)

FILE NO/S : CACV 1 of 2009 BETWEEN : CAROL ELIZABETH FARRELL by next friend THE PUBLIC TRUSTEE

Appellant

AND

ALLREGAL ENTERPRISES PTY LTD (Mortgagee in Possession: Perpetual Ltd)

Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : MARTIN CJ

File No : CIV 1788 of 2008

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : MASTER SANDERSON

File No : CIV 2250 of 2007

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : MARTIN CJ

File No : CIV 2271 of 2008

Catchwords:

Application to settle appeal under r 60 Supreme Court (Court of Appeal) Rules 2005 (WA) - Whether settlement for the benefit of person under a disability - Meaning of 'independent opinion' - Application granted

(Page 3)

Legislation:

Supreme Court (Court of Appeal) Rules 2005 (WA), r 60

Result:

CACV 70 of 2008 - Application granted

CACV 101 of 2008 - Application granted
CACV 1 of 2009 - Application granted

Category: B

Representation:

CACV 70 of 2008

Counsel:

Appellant : Mr B W Ashdown

Respondent : No appearance

Interested…

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: [2011] WASCA 247
Decision Date: 11 NOVEMBER 2011

CaseChat Overview and Summary

Farrell v Allregal Enterprises Pty Ltd [No 3] involved the applicants seeking to settle their appeal in the Supreme Court of Western Australia. The applicants, Farrell, were contesting the decisions made by Allregal Enterprises Pty Ltd. The central issue was whether the settlement would be for the benefit of a person under a disability, specifically interpreting the term 'independent opinion' within the context of the Supreme Court (Court of Appeal) Rules 2005 (WA). The applicants argued that the settlement would indeed be for the benefit of the disabled individual, with the condition that an independent opinion on the settlement's fairness was obtained.

The court had to determine if the settlement was genuinely for the benefit of the disabled person and whether the 'independent opinion' requirement was met as per the rules. The applicants presented evidence of the independent opinion they obtained, asserting that it supported the settlement's fairness. The court considered the legal standards and precedents governing settlements under disability and the interpretation of 'independent opinion'. It scrutinised the evidence provided by the applicants to ensure that the settlement aligned with the legal criteria and was in the best interest of the disabled individual.

The court concluded that the settlement was for the benefit of the disabled person and that the 'independent opinion' requirement was satisfied. It granted the applicants' requests to settle the appeal, affirming that the settlement met the legal standards set forth in the rules. The court's decision was based on the thorough examination of the evidence and the compliance with the necessary legal requirements. The final orders reflected the granting of the applications for the settlement to proceed under the specified conditions.

Orders

Orders of the court

CACV 70 of 2008 - Application granted

CACV 101 of 2008 - Application granted

CACV 1 of 2009 - Application granted

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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