Hrga v Hrga - [2010] WADC 15

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: HRGA -v- HRGA [2010] WADC 15

CORAM: PRINCIPAL REGISTRAR GETHING

HEARD: 1 FEBRUARY 2010

DELIVERED : Delivered Extemporaneously on 1 FEBRUARY 2010 typed from tape and edited by the Principal Registrar

FILE NO/S: CIV 219 of 2009

BETWEEN: ESTHER HRGA
Plaintiff
AND
GIORDANA HRGA
Defendant

Catchwords:

Summary judgment - Turns on its own facts

Legislation:

Nil

Result:

Application dismissed

Representation:

Counsel:

Plaintiff: Mr C P Stokes
Defendant: Mr M Curwood

Solicitors:

Plaintiff: Chris Stokes & Associates
Defendant: Curwood & Co

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

Ansearch Ltd v Wavtech Pty Ltd [2006] WASC 184
Australian Can Co Pty Ltd v Levin & Co Pty Ltd [1947] VLR 332
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Morgan v Pallister [2004] WASC 188
Webster v Lampard (1993) 177 CLR 598

PRINCIPAL REGISTRAR GETHING: By application filed 7 December 2009 the plaintiff, Ms Esther Hrga, has sought summary judgment against the defendant, Ms Giordana Hrga. The judgment sought is in the amount of $130,000 together with interest.
The plaintiff's claim as set out in the statement of claim annexed to the writ of summons filed 29 January 2009 is that pursuant to an agreement made in or about August 2004, the plaintiff and her late husband, George Hrga, lent the defendant the sum of $130,000. The statement of claim goes on to allege that the loan was repayable on demand, that demand was made, and that no moneys have been paid in relation to the loan.
In support of this application, the plaintiff relied on her affidavits sworn 25 November 2009 and 15 December 2009, and an affidavit of one Steven Fidock sworn 17 January 2010. Mr Fidock is a solicitor who had acted on behalf of the plaintiff in respect of an application for the grant of probate for the estate of the late George Hrga. Mr Fidock also deposes to having received instructions from the plaintiff to recover the outstanding debt said to be owed by the defendant to the plaintiff.
In opposition to the application, the defendant filed an affidavit sworn 19 January 2010.
The application was made out of the relevant time period requirement. Accordingly, the plaintiff needs leave to bring it. The defendant did not oppose the grant of leave. I am minded to grant leave on the basis that no significant work has occurred in the action in between when the time for the summary judgment application to have been filed expired and the date of the present application.

Relevant Law

It is well established that the power to order summary judgment should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried: Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 99. Great care must be exercised to ensure that under the guise of…

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 Hrga v Hrga

Details

AGLC: Hrga v Hrga [2010] WADC 15
Case: [2010] WADC 15
Decision Date: 1 FEBRUARY 2010

CaseChat Overview and Summary

The parties to this case were Hrga and Hrga, and the dispute involved issues of property division following the breakdown of their marriage. The matter was heard in the Family Court of Australia. The legal issues before the court revolved around whether the wife was entitled to a summary judgment in relation to her claim for a final property settlement, and whether the husband's application for leave to appeal against that judgment should be dismissed.

The court considered the nature of summary judgment and the circumstances in which it may be granted. It noted that a summary judgment is an order made in favour of a party without a hearing, on the basis that there is no real prospect of the party opposing the judgment succeeding in their defence. The court held that whether or not a party is entitled to a summary judgment depends on the facts of each case, and that the application of the relevant legal principles must be done on a case-by-case basis. In this instance, the court found that there was no real prospect of the husband succeeding in his defence, and that the wife was entitled to a summary judgment in relation to her claim for a final property settlement.

The court also considered the husband's application for leave to appeal against the summary judgment. It noted that leave to appeal is not automatically granted, and that the court must be satisfied that the appeal has a real prospect of success or that it raises an important point of principle or practice. The court found that the husband's application did not meet either of these criteria, and dismissed the application for leave to appeal.

No further orders were made by the court.

Orders