HASLEBY -v- DRAGICEVICH & ANOR [2001] WASC 206

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASC 206
Case No:	CIV:1936/1999	Heard:	1 AUGUST 2001
Coram:	HASLUCK J	Delivered:	9/08/01
No of pages:	11	Judgment Part:	1 of 1
Result:	Application allowed in part
Category:	B
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Parties:	MARILYN HASLEBY KATE NEVES DRAGICEVICH REGISTRAR OF TITLES
Catchwords:	Striking-out application Facts pleaded in claim insufficiently related to prayer for relief Plea in this form held to be embarrassing Further and better particulars of claim ordered Further discovery ordered Turns on own facts
Legislation:	Partnership Act Property Law Act 1969, s 34(1)(a) Supreme Court Rules O 20 r 8, O 20 r 19, O 26 r 6
Case References:	Beecham Group Ltd v Bristol Myers Co [1979] VR 273 Dare v Pulham (1982) 148 CLR 658 Dougherty v Nationwide News Pty Ltd (1967) 86 WN (Pt 1) (NSW) 181 Mulley & Anor v Manifold (1959) 103 CLR 341 Weir v Greening [1957] VR 296 Bailey v Federal Commissioner of Taxation (1977) 136 CLR 214 Bruce v Odhams Press Ltd [1936] 1 KB 697 Campagnie Financiere et Commerciale Du Pacifique v Peruvian Guano Company (1882) 11 QB 55 Charlie Carter Pty Ltd v SDAEA of WA (1987) 13 FCR 413 Cummings v Lewis (1993) ATPR (Digest) 46-103 Donaldson v Harris & Anor (1973) 4 SASR 299 Western Australia v Bond Corporation Holdings Ltd (1991) ATPR 41-018 Zierenberg v Labouchere [1892] 3 QB 183

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : HASLEBY -v- DRAGICEVICH & ANOR [2001] WASC 206 CORAM : HASLUCK J HEARD : 1 AUGUST 2001 DELIVERED : 9 AUGUST 2001 FILE NO/S : CIV 1936 of 1999 BETWEEN : MARILYN HASLEBY

Plaintiff

AND

KATE NEVES DRAGICEVICH

First Defendant

REGISTRAR OF TITLES

Second Defendant

Catchwords:

Striking-out application - Facts pleaded in claim insufficiently related to prayer for relief - Plea in this form held to be embarrassing - Further and better particulars of claim ordered - Further discovery ordered - Turns on own facts

Legislation:

Partnership Act

Property Law Act 1969, s 34(1)(a)
Supreme Court Rules O 20 r 8, O 20 r 19, O 26 r 6

(Page 2)

Result:

Application allowed in part

Category: B

Representation:

Counsel:

Plaintiff : Mr A C Thorpe

First Defendant : Mr G M Abbott

Second Defendant : No appearance

Solicitors:

Plaintiff : A C Thorpe

First Defendant : Karp Steedman Ross-Adjie

Second Defendant : No appearance

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

Beecham Group Ltd v Bristol Myers Co [1979] VR 273
Dare v Pulham (1982) 148 CLR 658
Dougherty v Nationwide News Pty Ltd (1967) 86 WN (Pt 1) (NSW) 181
Mulley & Anor v Manifold (1959) 103 CLR 341
Weir v Greening [1957] VR 296

Case(s) also cited:

Bailey v Federal Commissioner of Taxation (1977) 136 CLR 214
Bruce v Odhams Press Ltd [1936] 1 KB 697
Campagnie Financiere et Commerciale Du Pacifique v Peruvian Guano Company (1882) 11 QB 55
Charlie Carter Pty Ltd…

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 Hasleby v DRAGICEVICH

Details

AGLC: Hasleby v DRAGICEVICH [2001] WASC 206
Case: [2001] WASC 206
Decision Date

CaseChat Overview and Summary

This is an application by the first defendant, Kate Neves Dragicevic, for orders and directions in relation to various procedural matters arising from an action commenced by the plaintiff, Marilyn Hasleby. The application concerns the striking out of certain paragraphs of the prayer for relief in the amended substituted statement of claim, the requirement for the plaintiff to provide further and better particulars of certain paragraphs of the statement of claim, and an application for further and better discovery. The court found that the prayer for relief in its present form was embarrassing and should be struck out, but with leave to replead. The court also found that the plaintiff was obliged to answer certain requests for further and better particulars of the statement of claim, but not others. Finally, the court found that further and better discovery should be ordered in the manner defined by the first defendant's chamber summons dated 3 July 2001.

Paragraphs F and G of the plaintiff's prayer for relief will be struck out as embarrassing with leave to replead within 14 days. The plaintiff is required to answer in respect of the request for further and better particulars of claim dated 12 April 2001 questions 3(b) and (c), all parts of questions 4 and 5, questions 6(c) and (d), question 9(4) and questions 10(a)(i) to (v). The plaintiff is required to provide further and better discovery in terms of the summons dated 3 July 2001.

Orders