In de Braekt v Powell

Case [2007] WASCA 55


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   IN DE BRAEKT -v- POWELL [2007] WASCA 55

CORAM:   BUSS JA

HEARD:   27 OCTOBER 2006

DELIVERED          :   14 MARCH 2007

FILE NO/S:   CACV 122 of 2006

BETWEEN:   ANNA MARIA HUBERTINA IN DE BRAEKT

Appellant

AND

MIA MARY POWELL
Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :ACTING MASTER CHAPMAN

Citation  :POWELL -v- IN DE BRAEKT [2005] WASC 8

File No  :CIV 1661 of 2004

Catchwords:

Practice and procedure - Interlocutory appeal - Application for extension of time to apply for leave to appeal against decision of Master dismissing appellant's application for leave to apply for summary judgment - Whether application for summary judgment an appropriate process for determining limitation period issues

Limitation of actions - Express and constructive trusts - When limitation period begins to run against a beneficiary with a future interest - When no limitation period applies - Interaction of s 47(1) Limitation Act 1935 (WA) and s 25(2) Supreme Court Act 1935 (WA) - Whether respondent has reasonably arguable case that her claims are not barred by any statutory limitation period applying either directly or by analogy

Legislation:

Interpretation Act 1984 (WA), s 37
Limitation Act 1935 (WA), s 7, s 47(1), s 47(3)
Limitation Legislation Amendment and Repeal Act 2005 (WA), s 3, s 4(1), s 4(2), s 17
Rules of the Supreme Court 1971 (WA), O 3 r 5, O 16 r 1, O 20 r 2, O 63A r 3 (repealed)
Supreme Court Act 1935 (WA), s 25(2) (repealed), s 60(1)(f), s 60(3)
Supreme Court (Court of Appeal) Rules 2005 (WA), r 5
Trustee Act 1888 (UK), s 8

Result:

Application for extension of time to apply for leave to appeal dismissed

Category:    A

Representation:

Counsel:

Appellant:     Ms M M in de Braekt

Respondent:     No appearance

Solicitors:

Appellant:     Megan in de Braekt

Respondent:     No appearance

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

Bank of New Zealand v Spedley Securities Ltd (in liq) (1992) 27 NSWLR 91

Clarkson v Davies [1923] AC 100

Clay v Clay (1999) 20 WAR 427

Clay v Clay (2001) 202 CLR 410

Daly v Sydney Stock Exchange Ltd (1986) 160 CLR 371

Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196

Gallo v Dawson (1990) 64 ALJR 458

Giumelli v Giumelli (1999) 196 CLR 101

Graf v Hope Building Corporation (1930) 171 NE 884

Hewitt v Henderson & Anor [2006] WASCA 233

Hicks v Trustees Executors & Agency Co Ltd (1901) 27 VLR 389

Hogg v Scott [1947] KB 759

In re Blow; Governors of St Bartholomew's Hospital v Cambden [1914] 1 Ch 233

In re Somerset [1894] 1 Ch 231

Jackamarra v Krakouer (1998) 195 CLR 516

Jeffrey v Witherow (2006) 31 WAR 236

Levi v Stirling Brass Founders Pty Ltd (1997) 36 ATR 290

Muschinski v Dodds (1985) 160 CLR 583

Parsons v McBain (2001) 109 FCR 120

Piwinski v Corporate Trustees of…

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In de Braekt v Powell [2007] WASCA 55
Case
[2007] WASCA 55
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CaseChat Overview and Summary

In the Supreme Court of Western Australia, de Braekt, the appellant, sought an extension of time to appeal against the Master's dismissal of their application for leave to apply for summary judgment. The respondent, Powell, had raised issues relating to the limitation periods applicable to the claims in the proceeding. The primary focus of the appeal was whether the application for summary judgment was an appropriate mechanism for resolving questions of limitation periods and determining when these periods commence for a beneficiary with a future interest in an express or constructive trust. The court was also tasked with interpreting the interplay between section 47(1) of the Limitation Act 1935 (WA) and section 25(2) of the Supreme Court Act 1935 (WA) in the context of whether the respondent had a reasonably arguable case that her claims were not barred by statutory limitation periods.

The court considered the nature of the application for summary judgment and whether it was suitable for addressing complex limitation period issues. It examined whether such issues could be appropriately resolved through a summary judgment application or if they required a more detailed examination. Furthermore, the court deliberated on the interaction between the relevant statutory provisions to determine when the limitation period begins to run for a beneficiary with a future interest. The court needed to establish whether the statutory limitation periods applied directly or by analogy and how this affected the respondent's claims.

The court held that the application for summary judgment was not the appropriate process for resolving the limitation period issues. It determined that these issues required a more comprehensive examination, which could not be adequately addressed through a summary judgment application. The court found that when no limitation period applies, the limitation period does not begin to run against a beneficiary with a future interest until they have a vested interest or until the trust property becomes divisible. The court further held that there was a reasonably arguable case that the respondent's claims were not barred by any statutory limitation period applying either directly or by analogy.

The Supreme Court dismissed the appeal and refused the application for an extension of time to apply for leave to appeal. This decision underscores the importance of selecting the appropriate legal processes for different types of issues and highlights the complexities involved in determining limitation periods for beneficiaries with future interests in trusts.

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