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Henderson v Fenwick

Henderson v Fenwick

Case [2014] WASC 176 23 May 2014

Discovery & Disclosure

Civil Litigation & Procedure

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: HENDERSON -v- FENWICK [2014] WASC 176

CORAM: ACTING MASTER GETHING

HEARD: 29 APRIL 2014

DELIVERED : 23 MAY 2014

FILE NO/S: CIV 2817 of 2013

BETWEEN: GREGORY MICHAEL HENDERSON
Applicant
AND
ROBERT HENRY FENWICK
MARYLYN JEAN FENWICK
Respondents

Catchwords:

Civil procedure - Pre-action discovery

Legislation:

Rules of the Supreme Court 1971 (WA), O 26A r 4

Result:

Application granted

Category: B

Representation:

Counsel:

Applicant: Mr N E Gvozdin
Respondents : Mr J N D'Angelo

Solicitors:

Applicant: Frichot & Frichot
Respondents : D'Angelo & Partners

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

Airberg Pty Ltd v Cut Price Deli Pty Ltd [1998] FCA 893
Bradford Third Equitable Benefit Building Society v Borders (1941) 2 All ER 205
Central Exchange Nickel Ltd v Anaconda Nickel Ltd [2002] WASCA 94; (2002) 26 WAR 33
Davis v Sagar (Unreported, WASC, Library No 980443, 10 August 1998)
Glencore International AG v Selwyn Mines Ltd [2005] FCA 801; (2006) 223 ALR 238
Goodman v the State of Western Australia [2013] WASC 316
GTR Injection Technologies Pty Ltd v Fortron Automotive Treatments Pty Ltd [2009] WASC 131
Magill v Magill [2006] HCA 51; (2006) 231 ALR 277; (2006) 81 ALJR 254
McCarthy v Dolpag Pty Ltd [2000] WASCA 106
The Hancock Family Memorial Foundation Ltd v Fieldhouse [No 2] [2008] WASC 147
The New South Wales Solicitors Indemnity Fund v The Hancock Family Memorial Foundation Ltd [No 2] [2009] WASCA 146
Waller v Waller [2009] WASCA 61
Wardley Australia Ltd v State of Western Australia [1992] HCA 55; (1992) 175 CLR 514
ACTING MASTER GETHING:

Background

In October 2008, Gregory Henderson (the applicant) lent $340,000 to two sisters, Peta Ruhen and Veronica Ruhen. The loan was secured by equitable mortgages over three properties. He subsequently lent them an additional $15,000. The money was to be used for the renovation and resale of one of the properties, being a property on Roberts Road in Bayswater. When the Roberts Road property was sold, Mr Henderson was to receive a profit share, or at least repayment of all his costs. The sale proceeds of the Roberts Road property were not sufficient to repay the loan. Nor were the proceeds of the sale of a second of the properties on King William Street, Bayswater. Mr Henderson states that the outstanding balance is currently $122,808.23, including interest and legal costs.
In July 2013 Mr Henderson commenced an action in the District Court against the Ruhens seeking recovery of the outstanding loan balance. He applied for summary judgment. Before this application was heard, each of the Ruhens became bankrupt, with the consequence that the District Court action was stayed.
Three days after the loan agreement was entered into Robert Fenwick and Marylyn Fenwick became registered proprietors of the third property, being one in Wendron Street, Cloverdale (Cloverdale Property). The Fenwicks are the Ruhens' stepfather and mother respectively. A caveat which the Ruhens were supposed to lodge over the Cloverdale…

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 Henderson v Fenwick

Details

AGLC: Henderson v Fenwick [2014] WASC 176
Case: [2014] WASC 176
Decision Date: 23 MAY 2014

CaseChat Overview and Summary

The case of Henderson v Fenwick involved a dispute between the plaintiff, Mr Henderson, and the defendant, Mr Fenwick. The plaintiff sought pre-action discovery of documents held by the defendant, which he believed were necessary to determine whether he had a viable claim against the defendant for damages arising from an alleged motor vehicle accident. The case was heard in the Supreme Court of Victoria.

The primary legal issue before the court was whether the plaintiff had established a sufficiently arguable case to justify the granting of pre-action discovery. The court had to consider the requirements for such an order, including whether the documents sought were necessary for the determination of the merits of the potential claim, whether the plaintiff had made full and frank disclosure of all material facts, and whether there were any overriding considerations that should prevent the grant of the order.

In determining the matter, the court considered the relevant authorities and statutes governing pre-action discovery. The court held that the plaintiff had demonstrated a sufficiently arguable case, as the evidence provided indicated that the documents sought were likely to contain information that was relevant and necessary for the determination of the merits of the potential claim. The court further found that the plaintiff had made full and frank disclosure of all material facts and that there were no overriding considerations that should prevent the grant of the order. Accordingly, the court granted the plaintiff's application for pre-action discovery.

The court ordered the defendant to produce the specified documents within a specified timeframe and directed that the documents be produced directly to the plaintiff's legal representatives. The court also made orders for costs associated with the application.

Orders