Franz v Erceg (Junior)

[1999] WASC 144

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   FRANZ & ANOR -v- ERCEG (JUNIOR) & ORS [1999] WASC 144

CORAM:   MASTER BREDMEYER

HEARD:   23 AUGUST 1999

DELIVERED          :   26 AUGUST 1999

FILE NO/S:   CIV 1702 of 1999

BETWEEN:   DANTE GIORGIO FRANZ

ANIONDRA SCOLASTICA FRANZ
Plaintiffs

AND

ANDY ERCEG (JUNIOR)
First Defendant

THE REGISTRAR OF TITLES
Second Defendant

GLENN PATRICK BURKE
TRACEY DELAINE BURKE
Proposed Third Defendants

Catchwords:

Procedure - Application to join action as defendants

Legislation:

Supreme Court Rules (WA) O 18 r 6(2)(b)

Result:

Application dismissed

Representation:

Counsel:

Plaintiffs:     Mr P G Donovan

First Defendant                  :     In person

Second Defendant              :     No appearance

Proposed Third Defendants  :     Mr B W Ashdown

Solicitors:

Plaintiffs:     McCallum Donovan Sweeney

First Defendant                  :     In person

Second Defendant              :     No appearance

Proposed Third Defendants  :     Ilbery Barblett

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

Nil

Case(s) also cited:

Rogala & Anor v Caris Corporation Ltd & Anor & Slater, unreported; SCt of WA; Library No 5089; 27 September 1983

1. MASTER BREDMEYER:  This an application by Mr and Mrs Burke to be joined as third defendants in this action.  The present action, between the plaintiffs and the first defendant is for the specific performance of a contract of sale dated 14 March 1999.  The plaintiffs are the purchasers of 60 Maxwell Road, Caversham and the first defendant is the vendor.  The legal issues in this case include (1) whether the first defendant's wife had authority to sell his interest in the land, by virtue of a Family Court order, and (2) whether the contract of sale for part of the lot on the title is valid without the approval of the Town Planning Commission under s 20 of the Town Planning & Development Act 1928 (WA).

2. Mr and Mrs Burke agreed to buy 54 and 60 Maxwell Road, Caversham from the first defendant and his brother, Joe Marine Erceg, in a contract of sale dated 7 August 1999.

3. I consider it is not necessary to join the Burkes to ensure that all matters in issue between the plaintiffs and the first defendant be determined.  They seek no orders against the plaintiffs and the plaintiffs seek no orders against them.  It is said for the Burkes that they have a competing interest in the land.  I do not think that is so.  They only have an interest in the land if the first contract of sale is avoided.  It is only if the first contract of sale is avoided that the Court would determine any issues between the Erceg brothers and the Burkes.

4. There is no issue between the Erceg brothers and the Burkes now.  The Erceg brothers (who are co‑owners) want to sell all the land on the title to the Burkes and the Burkes say they are ready, willing and able to complete the purchase.  The plaintiffs' caveat stands in the way.

5. The first defendant is unrepresented and may be prevented by the Family Court order and/or his inexperience in legal argument from addressing all relevant arguments to the Court. If the Burkes came in, their counsel could more skilfully present those arguments which would be of help to the Judge. Despite that advantage I have to decide the application on the rules and I consider the Burkes fail to come under O 18 r 6(2)(b) so the application will fail. Whether the Burkes wish to pay for legal representation for the first defendant or prepare some legal arguments for him to be put to the Court, perhaps in written form, is up to them.

6. The application will be dismissed.  The Burkes will be ordered to pay the plaintiffs' costs of the application to be taxed if not agreed.

7. On 16 August 1999, the first return of this application, I (1) adjourned the application to 23 August 1999, and (2) ordered the Burkes to pay the plaintiffs' costs of today in any event.  I now wish to correct that order under the slip rule (O 21 r 10).  I delete the words "in any event".