JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: JONES -v- TIMMINS [2025] WASC 187
CORAM: MASTER RUSSELL
HEARD: 25 SEPTEMBER 2024
DELIVERED : 20 MAY 2025
FILE NO/S: CIV 1339 of 2024
BETWEEN: LINDA ELLEN JONES
Plaintiff
AND
GERARD FRANCIS TIMMINS
Defendant
Catchwords:
Practice and Procedure - Summary judgment - Application for order for sale of land pursuant to s 126(1) of the Property Law Act 1969 (WA) - Application opposed - Factual dispute as to contributions made by the parties - Counterclaim for direction for valuation of plaintiff's share of the land pursuant to s 126(3) of the Property Law Act 1969 (WA) - Issue raised as to whether joint tenancy severed by agreement – Application for summary judgment dismissed - Turns on own facts
Legislation:
Property Law Act 1969 (WA) s 126, s 126(1), s 126(3)
Rules of the Supreme Court 1971 (WA) O 14, O 14 r 1(1), O 14 r 2(1)
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Plaintiff | : | Mr P Lafferty |
| Defendant | : | Mr J C Yeldon |
Solicitors:
| Plaintiff | : | Keay Legal |
| Defendant | : | HLB Lawyers |
Cases referred to in decision(s):
Agostina Teresa Raphael as executor of the will of Tonino Luciano Randazzo v Randazzo [2023] WASC 312
Bailey v Pattinson (Unreported, SCWA Library No 1566/94, 23 November 1994)
Bombara v Bombara [2010] WASC 314
Brown v Toubia [2024] WASC 107
Burton v Camden London Borough Council [2002] 2 AC 399
Dale v McCullough (1988) ANZ Conv R 67
Deputy Commissioner of Taxation v Lafferty [2017] WASC 257
Fels v Rural Bank [2020] WASCA 151
Giacci v Giacci Holdings Pty Ltd [2010] WASC 349
Holland Investments Pty Ltd v Motorways (1984) Pty Ltd (Unreported, WASC, Library No 920557, 4 November 1992)
Martin-Smith v Woodhead [1990] WAR 62
McPherson v Hancock (Unreported, WASC, Library No 9173, 6 December 1991)
Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109
Muschinski v Dodds (1985) 160 CLR 583
Nullagine Investments Pty Ltd v The Western Australian Club Inc (Unreported, WASC, Library No 8523, 3 October 1990)
Nullagine Investments Pty Ltd v Western Australian Club Inc [1993] HCA 45; (1993) 177 CLR 635
Orrman v Orrman [No 2] [2008] WASC 17
Perman v Maloney [1939] VLR 376
Pitt v Jones (1880) 5 App Cas 651
Singh v Kaur Bal [No 2] [2014] WASCA 88
Spencer v The Commonwealth [2010] HCA 28; (2010) 241 CLR 118
Squire v Rogers (1979) 39 FLR 106
Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14
Trainor v Trainor [2021] WASC 40
Wallingford v Mutual Society (1880) 5 App Cas 685
Westpac Banking Corporation v Anderson [2017] WASC 106
Willis v The State of Western Australia [No 3] [2010] WASCA 56
MASTER RUSSELL:
Introduction
The plaintiff, Linda Ellen Jones, commenced this proceeding by writ of summons indorsed with a statement of claim on 25 March 2024, seeking an order for the sale of land in lieu of partition pursuant to s…
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- AGLC
- Jones v Timmins [2025] WASC 187
- Case
- [2025] WASC 187
- Decision Date
CaseChat Overview and Summary
The court held that the application for summary judgment should be brought at an early stage in the proceedings to avoid excessive expenses. The 21-day time limit for such applications was intended to encourage this. The plaintiff's application was brought less than one week after the time limit, and the defendant did not oppose it. The court found no evidence of prejudice to the defendant and granted the plaintiff leave to bring the application out of time. The court reserved its decision on the application until further evidence was provided.
The court dismissed the application for summary judgment and held that the matter should proceed to trial. The court found that there were factual disputes over the contributions made by the parties and the severance of the joint tenancy. The court also noted that the plaintiff's counterclaim for a direction for the valuation of her share of the land was not appropriate at that stage of the proceedings.
The court made an order that the application for summary judgment was dismissed, and the matter would proceed to trial. The court also made an order that the plaintiff had leave to bring the application out of time and that the time for doing so should be extended to the date of filing.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The 21-day time limit to bring an application for summary judgment reflects the view that such applications should be brought at an early stage of the proceedings, before too much expense has been incurred. Where there is a delay, it must ordinarily be explained, and the onus is on the applicant to demonstrate that it is justifiable in the circumstances. Any prejudice to the other party caused by the delay and the prospects of the application are also relevant factors.[2][2] See Westpac Banking Corporation v Anderson [2017] WASC 106 (Westpac v Anderson) [38], and the authorities referred to. The Application was brought at an early stage of the proceedings, less than one week outside the 21‑day time limit imposed by O 14 r 1 RSC. The defendant took no position in relation to the plaintiff's application for leave to bring the Application, saying it neither opposed it nor consented to it. There is no suggestion or evidence of any prejudice to the defendant caused by the short delay. In the circumstances, I was satisfied that the plaintiff should have leave to bring the Application out of time and that the time for doing so should be extended to the date of filing, 27 May 2025. An order was made to that effect and my decision in relation to the Application was reserved. The statement of claim is brief. Other than describing the Property and stating that the plaintiff and the defendant are the registered proprietors of it as joint tenants, it states that:1.Ms Jones wishes to sell her interest in the Property as soon as practicable.[3]2.In October 2023, she requested Mr Timmins' consent to a joint sale of the Property or that he make an offer to purchase her interest in it. This was done by a letter from Ms Jones' solicitors to Mr Timmins dated 30 October 2023.[4]3.Mr Timmins has not responded to that request.[5]4.Ms Jones seeks an order that the Property be sold pursuant to s 126 of the Act.[6][3] Statement of claim [3].[4] Statement of claim [4].[5] Statement of claim [5].[6] Statement of claim [6]. In the prayer for relief, Ms Jones seeks an order that the Property be sold, that she have conduct of the sale and other orders relating to the sale of the property, including that each of the parties shall have liberty to bid at auction or to offer to purchase the Property and that the net proceeds of sale, after payment due to any encumbrancers and all other costs, charges and expenses, be paid into court. At the hearing of the Application, counsel for Ms Jones sought orders to that effect, save that the Property be sold at auction. Ms Jones attaches a copy of the letter referred to in the statement of claim to her affidavit sworn on 24 May 2024.[7] She deposes to having paid the deposit to purchase the Property from her own funds and that she made contributions to the mortgage in respect of the Property from time to time.[8] She does not state how much the deposit or the purchase price of the Property was. [7] Jones May 2024 Affidavit [6] - [7], 'LEJ-2'.[8] Jones May 2024 Affidavit [9].