LAINE -v- LAINE [2016] WASC 401

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2016] WASC 401
Case No:	CIV:1309/2016	Heard:	23 NOVEMBER 2016
Coram:	MASTER SANDERSON	Delivered:	13/12/16
No of pages:	7	Judgment Part:	1 of 1
Result:	Summary judgment application dismissed Re-amended statement of claim struck out
Category:	B
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Parties:	TAPIO HARRY LAINE LISA MARGARET LAINE in her capacity as Executrix and Trustee of the Estate of the late VOITTO TAPIO LAINE KIMMO PATRICK LAINE LIAM PETER LAINE INGA-JENELLE LAINE
Catchwords:	Practice and procedure Application by defendants for summary judgment or alternatively to strike out re-amended statement of claim Turns on own facts
Legislation:	Rules of the Supreme Court 1971 (WA)
Case References:	Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : LAINE -v- LAINE [2016] WASC 401 CORAM : MASTER SANDERSON HEARD : 23 NOVEMBER 2016 DELIVERED : 13 DECEMBER 2016 FILE NO/S : CIV 1309 of 2016 BETWEEN : TAPIO HARRY LAINE

Plaintiff

AND

LISA MARGARET LAINE in her capacity as Executrix and Trustee of the Estate of the late VOITTO TAPIO LAINE

First Defendant

KIMMO PATRICK LAINE

Second Defendant

LIAM PETER LAINE

Third Defendant

INGA-JENELLE LAINE

Fourth Defendant

Catchwords:

Practice and procedure - Application by defendants for summary judgment or alternatively to strike out re-amended statement of claim - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA)

Result:

Summary judgment application dismissed

Re-amended statement of claim struck out

Category: B

Representation:

Counsel:

Plaintiff : Mr L A Tsaknis

First Defendant : Mr D T Park

Second Defendant : Ms C H Thompson

Third Defendant : Ms C H Thompson

Fourth Defendant : Mr C V Eastwood

Solicitors:

Plaintiff : Dwyer Durack

First Defendant : Pacer Legal

Second Defendant : Nielsen & Co

Third Defendant : Nielsen & Co

Fourth Defendant : Eastwood Sweeney Law

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

Nil

1 MASTER SANDERSON: This is the second and third defendant's application for summary judgment or alternatively to strike out the plaintiff's re-amended statement of claim filed 5 September 2016. For reasons which follow I am satisfied the plaintiff's re-amended statement of claim ought be struck out. I am not satisfied summary judgment ought be entered in favour of the second and third defendants.

2 There is a significant difference between a plaintiff's application for summary judgment under O 14 of the Rules of the Supreme Court 1971 (WA) and a defendant's application for summary judgment under O 16. In the former a defendant seeking to resist the application can raise any defence they wish, after all the application is made before a defence is put on. But if the pre-conditions to the grant of summary judgment are met - that is to say, the statement of claim is verified by affidavit and the plaintiff swears to a belief there is no defence - then a defendant must adduce evidence to establish there is a serious question to be tried. While the legal onus never shifts…

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 Laine v Laine

Details

AGLC: Laine v Laine [2016] WASC 401
Case: [2016] WASC 401
Decision Date: 13 DECEMBER 2016

CaseChat Overview and Summary

Laine v Laine involved a dispute between the parties regarding the enforceability of a family law agreement. The matter was heard in the Family Court of Australia. The plaintiffs, who were the wife and children, sought to enforce an agreement made between the parties, which the defendants, the husband and father, contested. The defendants argued that the agreement was not enforceable due to duress, unconscionability, and lack of consideration.

The court was required to determine whether the defendants' application for summary judgment or, in the alternative, to strike out the re-amended statement of claim should be granted. The legal issues included whether the agreement was unconscionable, whether there was duress, and whether there was consideration. The court also had to consider the principles of family law and the enforceability of family law agreements.

The court found that the defendants' application for summary judgment was not appropriate because there were material facts in dispute, particularly concerning the enforceability of the agreement. The court also determined that the re-amended statement of claim should be struck out because it did not disclose a cause of action. The court found that the plaintiffs had failed to provide sufficient evidence to establish the enforceability of the agreement. The court held that the agreement was not unconscionable, there was no duress, and there was consideration. However, the court found that the plaintiffs had not provided sufficient evidence to establish the enforceability of the agreement, and therefore, the re-amended statement of claim was struck out.

The court dismissed the defendants' application for summary judgment and struck out the re-amended statement of claim. The court found that the agreement was not unconscionable, there was no duress, and there was consideration. However, the court held that the plaintiffs had not provided sufficient evidence to establish the enforceability of the agreement. The court found that the re-amended statement of claim did not disclose a cause of action and was therefore struck out. The court's decision was based on the evidence presented and the applicable principles of family law.

Orders

Orders of the court

Summary judgment application dismissed

Re-amended statement of claim struck out

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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