Law v Hall
[2008] WASCA 257
•4 DECEMBER 2008
LAW -v- AUDREY FRANCES HALL as Executrix of the Estate of the late KENNETH DUNCAN HALL [2008] WASCA 257
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASCA 257 | |
| THE COURT OF APPEAL (WA) | 14/12/2008 | ||
| Case No: | CACV:106/2008 | 4 DECEMBER 2008 | |
| Coram: | PULLIN JA BUSS JA | 3/12/08 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | MAURICE FREDERICK LAW AUDREY FRANCES HALL as Executrix of the Estate of the late KENNETH DUNCAN HALL |
Catchwords: | Appeal Grounds of appeal having no reasonable prospect of succeeding No new point of principle |
Legislation: | Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(f), r 43(2)(g)(i) |
Case References: | Hall v Chin [2008] WASC 255 Hall v Hall [2007] WASC 34 Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : LAW -v- AUDREY FRANCES HALL as Executrix of the Estate of the late KENNETH DUNCAN HALL [2008] WASCA 257 CORAM : PULLIN JA
- BUSS JA
- Appellant
AND
AUDREY FRANCES HALL as Executrix of the Estate of the late KENNETH DUNCAN HALL
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MASTER SANDERSON
Citation : AUDREY FRANCIS HALL as executrix of the estate of KENNETH DUNCAN HALL -v- CHIN [2008] WASC 255
File No : CIV 1775 of 2008
(Page 2)
Catchwords:
Appeal - Grounds of appeal having no reasonable prospect of succeeding - No new point of principle
Legislation:
Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(f), r 43(2)(g)(i)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Mr C J Sweeney
Solicitors:
Appellant : In person
Respondent : McCallum Donovan Sweeney
Case(s) referred to in judgment(s):
Hall v Chin [2008] WASC 255
Hall v Hall [2007] WASC 34
Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473
(Page 3)
1 REASONS FOR JUDGMENT OF THE COURT: On 4 December 2008, the court dismissed the appellant's appeal with reasons to be delivered later. These are the reasons for that judgment.
2 The judgment was ordered as a result of the respondent's application invoking the court's jurisdiction to strike out grounds of appeal on the basis that they do not have a reasonable prospect of success and on the basis the appeal should be dismissed if none of the grounds of appeal has a reasonable prospect of succeeding. See Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(f) and s 43(2)(g)(i). The rule confers power on a single judge but it is the delegation of a power which the court has and so the court can exercise the powers in r 43.
3 A ground will have a 'reasonable prospect of succeeding' if it has a rational and logical prospect of succeeding; that is, it would not be irrational, fanciful or absurd to envisage it succeeding in this court; in effect, that it has a real prospect of success: Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
4 The background to this appeal is as follows. In action no CIV 2073 of 2003, Audrey Frances Hall as executrix of the will of Kenneth Duncan Hall, was the plaintiff. This was a mortgage action in which the plaintiff sought possession of two properties. The defendant, Nancy Cloonan Hall was the registered proprietor of those properties. On 19 February 2007, Justice Jenkins made the following orders:
1. Within 28 days the Defendant pay to the Plaintiff the sum of $2,301,010.28 being the principal sum and interest owing under the mortgage.
2. Within 28 days after service upon her of this judgment the Defendant deliver up to the Plaintiff possession of the properties comprised in the Mortgage and known as:
a. Lot 126 on Plan 4553 and being the whole of the land comprised in Certificate of Title Volume 1048 Folio 795 ('Hazelmere land'); and
b. Part of Lot 150 on Plan 1237 and being the whole of the land comprised in Certificate of Title Volume 1696 Folio 880 ('Mount Lawley land'),
the said properties being hereinafter referred to collectively and severally as the 'Properties'.
3. The plaintiff be:
- (a) at liberty to sell the Properties; and
(b) entitled to retain the money resulting from sale towards satisfaction of the amount due to the Plaintiff under the mortgage and for her costs of this action and to hold the balance in trust for the Defendant or such other person entitled thereto.
- 4. …
- See Hall v Hall [2007] WASC 34.
5 Subsequently, in action no CIV 1775 of 2008, Audrey Hall as the executrix of Kenneth Duncan Hall, brought proceedings against Nicholas Ni Kok Chin, Spunter Pty Ltd and the Registrar of Titles seeking orders to remove caveats the defendants Chin and Spunter Pty Ltd had lodged against the title to the two properties. On 29 October 2008 Master Sanderson ordered that the caveats be removed and gave reasons in Hall v Chin [2008] WASC 255. This appeal is against that order.
6 The appeal notice contains grounds in two paragraphs which read:
1. The appellant appeals to the Court of Appeal against the above decision of Master Sanderson on the 29th of October 2008 on the following grounds that SPUNTER PTY LTD was never informed by the Supreme Court that a hearing was to be held on the date of 29th of October 2008.
2. A previous appeal was instigated against the decision of Justice Jenkins made in the year of 2007 on the grounds that Audrey Frances Hall held a document (Mortgage) which appears to be a document in fiction where Nancy Cloonan Hall had not received payment from the original mortgagor, ENGINEERING FACILITIES PTY LTD and that the appellant SPUNTER PTY LTD holds a first mortgage and caveat on the property awarded to Audrey Frances Hall on a fictional document.
7 The appellant, Mr Law, in an affidavit filed 4 November 2008 states that he is 'the director and principle [sic] person made responsible by the three Shareholders of SPUNTER PTY LTD to oversee and ensure that the interests of SPUNTER PTY LTD are secured' [7]. He goes on in his affidavit to say:
I am simply asking AUDREY FRANCES HALL to provide clear evidence that the property awarded to her by Justice Jenkins was in fact encumbered by an original payment of $374,000 made by Engineering Pty Ltd to NANCY CLOONAN HALL. If this cannot be clearly shown then the
(Page 5)
- document supplied by her as an alleged mortgage is nothing more than a document in legal fiction. [7]
8 As already mentioned, the respondent applied to dismiss the appeal, on the basis that the grounds have no reasonable prospects of succeeding. The respondent points out that the appellant was not a party to the proceedings before Master Sanderson; nor was he a party to the proceedings before Justice Jenkins. In any event, the appeal is not against Justice Jenkins' orders which were made over 20 months ago and the appellant has filed another appeal (CACV 100 of 2008) against those orders.
9 The result is that neither of the grounds of appeal has any reasonable prospect of succeeding because the appellant was not a party to the proceedings leading to the order appealed against. There is no reasonable prospect that a person not a party to proceedings could successfully advance a ground of appeal that judgment should be set aside because the party was allegedly not informed of the hearing date and particularly so where the party itself makes no such complaint. In any event, it is plain from an affidavit of Mr Prime filed 20 November 2008, which was relied on by the respondent, that Mr Law was in fact notified of the hearing dates. There is no evidence to the contrary from Mr Law or anyone else. The first ground of appeal therefore, has no reasonable prospect of succeeding.
10 The second ground of appeal does not allege any error in relation to Master Sanderson's order. Instead it refers to the proceedings before Justice Jenkins. The appeal is not against that decision and issues about those proceedings raised by Mr Law (who was not a party to that action) could not sustain an appeal against Master Sanderson's judgment.
11 The result is that neither of the grounds set out in the appeal notice has any reasonable prospect of succeeding with the result that the appeal was dismissed.
12 An order was also made that the appellant pay the respondent's costs of the application and the appeal to be taxed. The appellant resisted that order but advanced no relevant submissions as to why the usual order for costs should not be made. The court has a discretion in relation to costs orders but, unless there is some reason for not doing so, the usual order is that the unsuccessful party should pay the successful party's costs. There being no relevant reasons advanced, the court made the order that the appellant pay the respondent's costs of the application, and the appeal, to be taxed.
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