LANCE & ANOR -v- LANCE [2004] WASC 234

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASC 234
Case No:	CIV:2071/2004	Heard:	22 OCTOBER 2004
Coram:	MASTER SANDERSON	Delivered:	16/11/04
No of pages:	7	Judgment Part:	1 of 1
Result:	Judgment for plaintiff
Category:	B
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Parties:	PATRICIA ANNIE LANCE ANNIE PATRICIA LANCE MIC THI LANCE
Catchwords:	Practice and procedure Application for summary judgment by plaintiff Turns on own facts
Legislation:	Nil
Case References:	Baumgartner v Baumgartner (1987) 164 CLR 137 Ghana Commercial Bank v Chandiram [1960] AC 732 Hayes v O'Sullivan (2001) 24 WAR 40 Heid v Reliance Finance Corporation Pty Ltd (1983) 154 CLR 326 In Marriage of Stevens (1991) 105 FLR 459 LHK Nominees Pty Ltd v Kenworthy (2002) 26 WAR 517 Lloyd v Tedesco (2002) 25 WAR 360 Midland Brick Company Pty Ltd v Welsh [2002] WASC 248 Porter v McDonald [1984] WAR 271 Professional Services of Australia Pty Ltd v Mila Properties Pty Ltd [2004] WASC 30

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : LANCE & ANOR -v- LANCE [2004] WASC 234 CORAM : MASTER SANDERSON HEARD : 22 OCTOBER 2004 DELIVERED : 16 NOVEMBER 2004 FILE NO/S : CIV 2071 of 2004 BETWEEN : PATRICIA ANNIE LANCE

ANNIE PATRICIA LANCE

Plaintiffs

AND

MIC THI LANCE

Defendant

Catchwords:

Practice and procedure - Application for summary judgment by plaintiff - Turns on own facts

Legislation:

Nil

Result:

Judgment for plaintiff

(Page 2)

Category: B

Representation:

Counsel:

Plaintiffs : Mr J C Curthoys

Defendant : Mr M D Cuerden

Solicitors:

Plaintiffs : Kaeser Kroon

Defendant : Christopher Garvey

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

Baumgartner v Baumgartner (1987) 164 CLR 137
Ghana Commercial Bank v Chandiram [1960] AC 732

Case(s) also cited:

Hayes v O'Sullivan (2001) 24 WAR 40
Heid v Reliance Finance Corporation Pty Ltd (1983) 154 CLR 326
In Marriage of Stevens (1991) 105 FLR 459
LHK Nominees Pty Ltd v Kenworthy (2002) 26 WAR 517
Lloyd v Tedesco (2002) 25 WAR 360
Midland Brick Company Pty Ltd v Welsh [2002] WASC 248
Porter v McDonald [1984] WAR 271
Professional Services of Australia Pty Ltd v Mila Properties Pty Ltd [2004] WASC 30

(Page 3)

1 MASTER SANDERSON: This is the return of two chamber summons, one in each of these two actions. In CIV 2071 of 2004, Patricia Annie Lance and Annie Patricia Lance are plaintiffs and Mic Thi Lance is the defendant. By chamber summons dated 2 September 2004, the plaintiffs apply for summary judgment. I will detail the precise terms of the judgment sought below. In CIV 2094 of 2004 the position of the parties is reversed. Mic Thi Lance is the plaintiff and Patricia Annie Lance and Annie Patricia Lance are the first defendants. In that action, by summons dated 24 August 2004, the plaintiff obtained an order extending the operation of a caveat over certain property. The plaintiff has had that summons relisted pursuant to liberty to apply, granted when the order was made,…

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 Lance v Lance

Details

AGLC: Lance v Lance [2004] WASC 234
Case: [2004] WASC 234
Decision Date

CaseChat Overview and Summary

The case of Lance v Lance was heard in the Supreme Court of Western Australia, with Master Sanderson presiding. The plaintiffs, Patricia Annie Lance and Annie Patricia Lance, sought summary judgment against the defendant, Mic Thi Lance, for vacant possession of the Myalup block. The dispute arose from the distribution of marital property following the divorce of Patricia Annie Lance and Thomas Lance, and the subsequent death of Thomas. The court had to determine whether the defendant had any valid claim to the property.

The central legal issue was whether the defendant had any interest in the property that could defeat the plaintiffs' claim for summary judgment. The court considered three potential arguments by the defendant: whether she had an interest under Thomas' will, whether she was subrogated to the security of the mortgage, and whether she had a right as a constructive trustee. The court found that none of these arguments had merit as the Myalup block never formed part of Thomas' estate, and any interest the defendant could have had would not survive Thomas' death.

Master Sanderson concluded that the plaintiffs were entitled to vacant possession of the Myalup block and granted them summary judgment. The court noted that there was no basis for the defendant to maintain her caveat over the property and indicated that the caveat should be discharged, subject to further submissions from counsel.

Orders