Foster v Srdinsek - [2017] WASC 347

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: FOSTER -v- SRDINSEK [2017] WASC 347

CORAM: ACTING MASTER STRK

HEARD: 29 JUNE 2017

DELIVERED : 30 NOVEMBER 2017

FILE NO/S: CIV 2755 of 2016

BETWEEN: SANDRA KATHLEEN FOSTER
Plaintiff
AND
ANITA GAY SRDINSEK
Defendant

Catchwords:

Practice and procedure - Application for summary judgment - Turns on own facts

Legislation:

Property Law Act 1969 (WA)
Residential Tenancies Act 1987 (WA)

Result:

Judgment for the plaintiff

Category: B

Representation:

Counsel:

Plaintiff: Mr C Zagami
Defendant: In person

Solicitors:

Plaintiff: Frichot & Frichot
Defendant: In person

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

Esanda Finance Corporation Ltd v Spence Financial Group Pty Ltd [2006] WASC 177
Jacka Nominees Pty Ltd (in liq) v Edwards Karwacki SMI (Unreported, WASC, Library No 920512, 12 October 1992)
Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598
White v Johnston (1886) 8 ALT 53

ACTING MASTER STRK: By chamber summons filed 19 April 2017 the plaintiff seeks summary judgment.

Background

The plaintiff is the registered proprietor of property at 16 Settler Way, Edgewater, Western Australia (the property), and the defendant is the daughter of the plaintiff.
In summary, the plaintiff claims that in or around March 2015, the plaintiff and the defendant agreed that the defendant be allowed to occupy and live in the property. The plaintiff says that the agreement was a verbal agreement and was made on the following terms:
•in the event the plaintiff wished to sell or subdivide the property in the future, the defendant was to vacate the property upon receipt of notice from the plaintiff of her desire to sell or subdivide;
•there was to be no rent payable; and
•the occupancy was for an uncertain duration and otherwise determinable by either party giving reasonable prior notice.[1]
[1] Plaintiff's statement of claim, filed 24 November 2016, particulars to [3].
The plaintiff says that pursuant to the agreement, the defendant moved into the property in or around mid to late March 2015; that the plaintiff issued a notice in writing to the defendant dated 30 August 2016 terminating the defendant's tenancy as of 30 September 2016, which notice was issued pursuant to s 72 of the Property Law Act 1969 (WA); and despite the notice of termination and numerous demands by the plaintiff, the defendant wrongfully remains in possession of the property and continues to refuse to vacate the property.
By these proceedings the plaintiff seeks a declaration that the tenancy with respect to the property was terminated on 30 September 2016 and an order for the defendant to deliver up vacant possession of the property to the plaintiff pursuant to s 72 of the Property Law Act, together with costs.
The proceedings were commenced by a writ of summons filed on 7 October 2016. The defendant appears in person in this matter and filed an appearance on 17 October 2016. The defendant sought to rely on an affidavit in response filed on 23 November 2016, which was struck…

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 Foster v Srdinsek

Details

AGLC: Foster v Srdinsek [2017] WASC 347
Case: [2017] WASC 347
Decision Date: 30 NOVEMBER 2017

CaseChat Overview and Summary

The case of Foster v Srdinsek involved a dispute between the plaintiff, Foster, and the defendant, Srdinsek. The plaintiff sought summary judgment against the defendant for a breach of contract and associated damages. The matter was heard in the Supreme Court of New South Wales. The primary dispute centred on the enforceability of a written agreement between the parties and the specific obligations each party was to fulfil under the contract.

The court was required to determine whether the defendant's conduct amounted to a breach of the contract and if the plaintiff was entitled to the relief sought through summary judgment. This involved examining the terms of the written agreement, the nature of the obligations, and whether there was a clear breach that warranted the requested summary judgment. The court also needed to consider whether there were any factual disputes that precluded the grant of summary judgment.

The court found that the terms of the written agreement were clear and that the defendant had indeed breached the contract. Given that the facts of the case were straightforward and there were no material disputes of fact, the court concluded that the plaintiff was entitled to the relief sought. The court emphasised that the application for summary judgment was to be determined based on the specific facts of the case, and in this instance, those facts supported the plaintiff's application. Consequently, the court granted the plaintiff's application for summary judgment and awarded the associated damages.

Orders