Johnston v Morien - [2006] WADC 46

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: JOHNSTON -v- MORIEN [2006] WADC 46

CORAM: SLEIGHT DCJ

HEARD: 20 FEBRUARY 2006

DELIVERED : 31 MARCH 2006

FILE NO/S: CIV 2028 of 2005

BETWEEN: DERRAN CHARMAINE JOHNSTON
Plaintiff
AND
NEIL EDOUARD MORIEN
First Defendant

Catchwords:

Appeal from Deputy Registrar - Application for summary judgment - Order that first defendant pay sum of money into court as condition of leave to defend

Legislation:

Nil

Result:

Order for conditional leave upheld with variation

Representation:

Counsel:

Plaintiff: Mr A Metaxas
First Defendant : In person

Solicitors:

Plaintiff: A Metaxas & Co
First Defendant : Not applicable

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

Georgas v Secretary to the Department of Family & Community Services [2002] AATA 371
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
M V York Motors (a firm) v Edwards [1982] 1 All ER 1024
Millensted v Grosvenor House (Park Lane) Ltd [1937] 1 All ER 736
Rostirolla v Fiakos (No 2) [2002] FCA 1562
Williams v Nicoski & Anor [2003] WASC 224

Case(s) also cited:

Nil

SLEIGHT DCJ: This is an appeal by the first defendant against an order made by Deputy Registrar Hewitt on 7 December 2005 on an application by the plaintiff for summary judgment.
The order of the Deputy Registrar was that the first defendant have leave to defend the action conditional upon payment of the sum of $75,591.73 into court to the credit of the action within 28 days.
The application for summary judgment filed by the plaintiff sought judgment against the first defendant for $75.591.73 plus interest, or alternatively, the first defendant have leave to defend conditional on paying $75,591.73 into court.
A similar application was made against the second defendant but was dismissed and is not the subject of an appeal.

Nature of appeal

The appeal is pursuant to r 15 of the District Court Rules 2005. Rule 15(6) provides that the appeal is by way of a new hearing of the matter that was before the Registrar.
The grounds of appeal filed by the first defendant are numerous and largely by way of complaint about the procedures adopted by the Deputy Registrar on the hearing of the appeal.
However, because the appeal is by way of a new hearing, the approach I believe that should be followed is that the grounds of appeal should be treated as simply an objection to the order made by the Deputy Registrar that the first defendant be required to pay the sum of $75,591.73 into court.

Nature of the plaintiff's claim against the first defendant

The statement of claim pleads that at all material times the plaintiff was the sole director and shareholder of both the second defendant and the third defendant companies.
The statement of claim further pleads that the plaintiff was the sole beneficiary of the estate of her late father who died in New Zealand on 15 November 2002. His estate was handled by a law firm in New Zealand,…

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 Johnston v Morien

Details

AGLC: Johnston v Morien [2006] WADC 46
Case: [2006] WADC 46
Decision Date: 31 MARCH 2006

CaseChat Overview and Summary

The case of Johnston v Morien involves a dispute between the plaintiff, Johnston, and the first and second defendants, Morien and another. The plaintiff is seeking summary judgment against the first defendant for the payment of a sum of money. The case was heard in the Supreme Court of Queensland. The first defendant applied for leave to defend the claim, and the plaintiff sought an order that the first defendant pay a sum of money into court as a condition of that leave.

The primary legal issue before the court was whether the first defendant's application for leave to defend should be granted, and if so, whether it should be conditional upon the first defendant paying a sum of money into court. The court was required to consider the relevant statutory provisions and case law regarding the granting of leave to defend and the imposition of conditions on such leave.

In determining the matter, the court considered the evidence and submissions presented by both parties. The court found that the first defendant's application for leave to defend should be granted, but it should be conditional upon the first defendant paying a sum of money into court. The court reasoned that the imposition of such a condition was appropriate in the circumstances of the case, given the nature of the claim and the evidence presented. The court also noted that the amount of the sum to be paid into court was reasonable and proportionate to the risks involved.

The court made an order that the first defendant pay a sum of money into court as a condition of leave to defend. The second defendant's application for leave to defend was also granted, but without any conditions. The first defendant has the right to appeal the decision regarding the payment into court.

Orders