Kruize v Vooys - [2023] WASC 411

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   KRUIZE -v- VOOYS [2023] WASC 411
CORAM:   FORRESTER J
HEARD:   3 OCTOBER 2023
DELIVERED          :   30 OCTOBER 2023
FILE NO/S:   CIV 1322 of 2022
BETWEEN:   ROSELINA KANT ANGELI KRUIZE
Plaintiff
AND
VANESSA GRACE VOOYS
First Defendant
REGISTRAR OF TITLES
Second Defendant

Catchwords:

Practice and procedure - First defendant's summary judgment application for orders pursuant to O 16 r 1 of the Rules of the Supreme Court 1971 (WA) - First defendant's strike-out application for orders pursuant to O 20 r 19(1)(a) of the Rules of the Supreme Court 1971 (WA) - Turns on own facts

Legislation:

Limitation Act 1935 (WA)
Limitation Act 2005 (WA)
Rules of the Supreme Court 1971 (WA)
Transfer of Land Act 1893 (WA)

Result:

Application for an extension of time is granted in each case
Application to strike out the statement of claim is allowed in part
Paragraphs 20(a) and 20(b)(ii) of the statement of claim are struck out
Application for summary judgment is dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	In Person
First Defendant	:	E Luck
Second Defendant	:	No appearance

Solicitors:

Plaintiff	:	In Person
First Defendant	:	McAllister Legal
Second Defendant	:	No appearance

Cases referred to in decision:

Ben-Pelech v Royle [2019] WASC 297
Bride and Bride v Peat Marwick Mitchell [1989] WAR 383
English v Vantage Holdings Group Pty Ltd [2021] WASCA 47
McJannett v Gibbs [2012] WASC 369
Petkov v Lucerne Nominees Pty Ltd (1992) 7 WAR 163
Pisano v South Metropolitan Health Service [2023] WASCA 80
Vantage Holdings Group Pty Ltd v Donnelly [No 4] [2019] WASC 398

FORRESTER J:

Introduction

This is an application by the first defendant (in this judgment, the defendant) pursuant to O 20 r 19(1)(a) of the Rules of the Supreme Court 1971 (WA) (RSC) for the plaintiff's statement of claim to be struck out in its entirety or, in the alternative, pursuant to O 16 r 1 RSC for summary judgment.
In the case of each application the defendant requires an extension of time.
For the reasons which follow I will grant the extension of time in each case, allow the strike out application in part, and dismiss the application for summary judgment.

The proceedings

On 1 April 2022, the plaintiff filed a writ against the defendant and the Registrar of Titles as the second defendant seeking delivery up of a parcel of land from the defendant or, in the alternative, damages and interest.
The parcel of land lies at the centre of two residential properties in Berrigan Street, Nollamara. A garage has been constructed on it. There is no dispute that the defendant, as the registered owner of one of those properties, presently has physical possession of the land and the garage (the Land).
The plaintiff, as the registered owner of the other property, claims that the Land belongs to her, on the basis that it has always belonged to the registered owner of that other property, or alternatively as…

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 Kruize v Vooys

Details

AGLC: Kruize v Vooys [2023] WASC 411
Case: [2023] WASC 411
Decision Date: 30 OCTOBER 2023

CaseChat Overview and Summary

The case of Kruize v Vooys involved a dispute between the plaintiff, Kruize, and the first defendant, Vooys. The plaintiff sought orders related to property matters, including a declaration regarding the first defendant's interest in a property, an order for possession of the property, and an order for the first defendant to pay the plaintiff's legal costs. The first defendant, in response, filed a summary judgment application under O 16 r 1 of the Rules of the Supreme Court 1971 (WA) and a strike-out application under O 20 r 19(1)(a) of the same rules. The court was required to determine whether the first defendant's applications should be granted and if the plaintiff's claims should be dismissed.

The court considered whether the first defendant's summary judgment application was appropriate given the facts of the case. The court also needed to decide whether the first defendant's strike-out application was justified under the relevant rule. Specifically, the court examined whether the plaintiff's claims disclosed a reasonable cause of action, and whether the first defendant's applications were based on the own facts of the case. The court evaluated the evidence and arguments presented by both parties, focusing on the substance of the plaintiff's claims and the procedural fairness of the first defendant's applications.

The court determined that the first defendant's summary judgment application was not appropriate, as the plaintiff's claims were not clearly without merit. The court found that the plaintiff's claims disclosed a reasonable cause of action, and that the first defendant's application was not based on the own facts of the case. Consequently, the court dismissed the first defendant's summary judgment application. Additionally, the court found that the first defendant's strike-out application was also not justified, as the plaintiff's claims were not frivolous or vexatious. The court held that the plaintiff's claims were sufficient to warrant a trial, and that the first defendant's application was not warranted under the relevant rule.

The court ordered that the first defendant's summary judgment application and strike-out application be dismissed. The court further ordered that the first defendant pay the plaintiff's costs of the applications. The court's decision affirmed the importance of evaluating the merits of claims and the procedural fairness of applications in the context of property disputes. The court's ruling underscored the need for a careful consideration of the evidence and arguments presented by both parties before granting summary judgment or striking out claims.

Orders