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:
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.
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.
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.
Ms Lafferty claimed that in her mother's lifetime, contrary to the representation in the letter, her mother transferred control of…
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- AGLC
- Lafferty v Waterton (No 2) [2020] FCA 1673
- Case
- [2020] FCA 1673
- Decision Date
CaseChat Overview and Summary
The court considered the appellant's failure to comply with the security for costs order and the procedural requirement to submit a draft of the appeal book index. These non-compliances were significant procedural breaches. The court also examined whether the grounds of appeal were reasonably arguable. It found that the appellant had not made a sufficient demonstration that the grounds of appeal had merit. Other factors, including the appellant's repeated procedural failures, supported the respondent's application to dismiss the appeal. The court concluded that the appeal should be dismissed due to the procedural non-compliance and the lack of reasonable arguability of the appeal grounds.
The appeal was dismissed, and the appellant was ordered to pay the respondent's costs of the appeal. The court's decision was based on the appellant's failure to comply with procedural requirements, the absence of reasonable arguability of the appeal grounds, and other relevant considerations. The entry of orders was governed by Rule 39.32 of the Federal Court Rules 2011.
Orders
Orders of the court
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.
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
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