Lafferty v Waterton (No 2)

[2020] FCA 1673

FEDERAL COURT OF AUSTRALIA

Lafferty v Waterton (No 2) [2020] FCA 1673

Appeal from:

Waterton v Lafferty, in the matter of Lafferty [2019] FCA 1267

File number:

WAD 452 of 2019

Judgment of:

COLVIN J

Date of judgment:

20 November 2020

Catchwords:

PRACTICE AND PROCEDURE - application to dismiss appeal - where appellant failed to comply with security for costs order - where appellant failed to submit draft of appeal book index - where not demonstrated that grounds of appeal reasonably arguable - other matters support application to dismiss - appeal dismissed

Cases cited:

Lafferty v Waterton [2019] FCA 2049

Lafferty v Waterton [No 2] [2017] WASC 84

Lafferty v Waterton [No 4] [2017] WASC 302

Nyoni v Pharmacy Board of Australia (No 2) [2019] FCA 225

Ramsay Health Care Australia Pty Ltd v Compton [2017] HCA 28; (2017) 261 CLR 132

Division:

General Division

Registry:

Western Australia

National Practice Area:

Commercial and Corporations

Sub-area:

General and Personal Insolvency

Number of paragraphs:

25

Date of hearing:

18 November 2020

Counsel for the Appellant:

The Appellant did not appear

Counsel for the Respondent:

Mr T Carmady

Solicitor for the Respondent:

Williams & Hughes

ORDERS

WAD 452 of 2019

BETWEEN:

SUSAN JUANITA LAFFERTY

Appellant

AND:

WILLIAM FRANK WATERTON

Respondent

ORDER MADE BY:	COLVIN J
DATE OF ORDER:	20 NOVEMBER 2020

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant do pay the respondent's costs of the appeal.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

COLVIN J:

1. Ms Susan Lafferty was made bankrupt on 14 August 2019.  The sequestration order in respect of her estate was made on the petition of Mr William Waterton, her brother.  The debt relied upon to support the petition was an unpaid costs order made after a Supreme Court trial in which Ms Lafferty was unsuccessful in a claim that she was entitled to a one-third share of her mother's estate.

2. The Supreme Court claim was based upon an allegation that some years earlier Ms Lafferty had refrained from pursuing a claim for family provision against her father's estate (which had passed to her mother under the terms of a will) on the basis of a representation by her mother.  The alleged representation was to the effect that the inherited estate and any other assets that remained after expending monies on maintenance and support would, on her mother's death, be divided equally between her three children being Ms Lafferty, Mr Waterton and another sibling Madelaine.

3. The representation was said to have been contained in a letter to Ms Lafferty from her mother which said:

   However you must remember that Bills main concern was to leave me provided for as is every husbands duty and wish, so if there is anything left after I die please be assured you will get your fair 1/3.

4. Ms Lafferty claimed that in her mother's lifetime, contrary to the representation in the letter, her mother transferred control of…