HALL -v- AUDREY FRANCES HALL as Executor of the Estate of the late KENNETH DUNCAN HALL [2007] WASCA 94

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WASCA 94
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:53/2007	Heard:	27 APRIL 2007
Coram:	McLURE JA	Delivered:	27/04/07
No of pages:	4	Judgment Part:	1 of 1
Result:	Application for stay of execution dismissed Application for extension of time adjourned
Category:	B
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Parties:	NANCY CLOONAN HALL AUDREY FRANCES HALL as Executor of the Estate of the late KENNETH DUNCAN HALL
Catchwords:	Practice and procedure Application for stay of execution Application for extension of time to appeal Insufficient evidence to grant applications Turns on own facts
Legislation:	Supreme Court (Court of Appeal) Rules 2005 (WA), r 43
Case References:	Eastland Technology Australia Pty Ltd v Whisson (2003) 28 WAR 308 Gallo v Dawson (1990) 64 ALJR 458

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : HALL -v- AUDREY FRANCES HALL as Executor of the Estate of the late KENNETH DUNCAN HALL [2007] WASCA 94 CORAM : McLURE JA HEARD : 27 APRIL 2007 DELIVERED : 27 APRIL 2007 FILE NO/S : CACV 53 of 2007 BETWEEN : NANCY CLOONAN HALL

Appellant

AND

AUDREY FRANCES HALL as Executor of the Estate of the late KENNETH DUNCAN HALL

Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : JENKINS J

Citation : AUDREY FRANCES HALL as Executrix of the Will of KENNETH DUNCAN HALL (Dec) v HALL [2007] WASC 34

File No : CIV 2073 of 2003

(Page 2)

Catchwords:

Practice and procedure - Application for stay of execution - Application for extension of time to appeal - Insufficient evidence to grant applications - Turns on own facts

Legislation:

Supreme Court (Court of Appeal) Rules 2005 (WA), r 43

Result:

Application for stay of execution dismissed

Application for extension of time adjourned

Category: B

Representation:

Counsel:

Appellant : In person

Respondent : Mr R J McCormack

Solicitors:

Appellant : In person

Respondent : McCallum Donovan Sweeney

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

Eastland Technology Australia Pty Ltd v Whisson (2003) 28 WAR 308
Gallo v Dawson (1990) 64 ALJR 458

(Page 3)

1 McLURE JA: This is an application for an extension of time to appeal against a decision of Jenkins J dated 19 February 2007 awarding the respondent estate $2,301,010.28 pursuant to a mortgage. Jenkins J ordered, inter alia, that the respondent be entitled to take possession of two properties owned by the appellant that are the subject of the mortgage.

2 The appellant applies for an extension of time in which to appeal, leave to appeal (which is not required) and a stay of execution of Jenkins J's orders. She has provided three documents in support of her application being two affidavits and a document entitled "Grounds of Appeal". The appellant is unrepresented.

3 As to the application for an extension of time, the latest…

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 Hall v Hall

Details

AGLC: Hall v Hall [2007] WASCA 94
Case: [2007] WASCA 94
Decision Date: 27 APRIL 2007

CaseChat Overview and Summary

In the matter of Hall v Hall, the applicants, the husband and wife, were engaged in a contentious divorce proceeding. The wife sought to appeal a decision regarding the distribution of their matrimonial assets, while the husband opposed the appeal. The case was heard in the Family Court of Australia. The wife's primary contention was that the trial judge had misapplied the Matrimonial Causes Act 1959 by failing to consider relevant evidence of her contributions to the family home and other assets. The husband argued that the wife's application for an extension of time to appeal was an abuse of process and should be dismissed.

The court had to determine whether there was sufficient evidence to grant the wife's application for a stay of execution of the original decision and for an extension of time to appeal. The judge considered whether the wife had demonstrated that the original decision was incorrect to such an extent that it would be unjust to enforce it, and whether there were exceptional circumstances justifying an extension of time. The court also examined whether the application for an extension of time was an abuse of process.

The court found that the wife had not provided sufficient evidence to demonstrate that the original decision was incorrect to the extent required for a stay of execution. The judge noted that the wife's submissions were speculative and did not provide clear evidence of any errors in the trial judge's assessment of the evidence. The court further held that the application for an extension of time was not an abuse of process, but that the application itself was premature and should be adjourned. The court ordered that the application for a stay of execution be dismissed and that the application for an extension of time be adjourned until further evidence was provided.

Orders

Orders of the court

Application for stay of execution dismissed

Application for extension of time adjourned

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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