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Lawless v Mackendrick

Lawless v Mackendrick

Case [2007] WASC 114 29 May 2007

Assignment

Summary Judgment

Property Law Act 1969 (WA)

Property Law

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FAMILY COURT OF AUSTRALIA

GIBBONS & GIBBONS

[2007] FamCA 26

APPEALS – Property settlement – property pool of $1,688,555 was found to be contributed 55-45 percent in favour of the husband – adjustment of 7.5 percent to the wife for s 75(2) factors - divided 52.5 per cent to the wife and 47.5 per cent to the husband – no error in determining contributions and s 75(2) factors as he did – they were within the range - no error by trial Judge in adding-back $14,100 of the appellant wife’s savings to the property pool after determining that money to be an amount retained by the appellant – the trial Judge also failed to add-back $24,000 received by the wife since separation as well - trial Judge did err in determining a percentage split of the property pool and then allocating to the husband in the Orders a particular monetary payment which might not accord with the percentage split – appeal upheld and discretion re-exercised.

Family Law Act 1975 (Cth)

Australian Coal and Shale Employees Federation v The Commonwealth (1953) 94 CLR 621
Gronow v Gronow (1979) 144 CLR 513

House v The King (1936) 55 CLR 499

AMS v AIF (1999) 199 CLR 160

CDJ v VAJ (1998) 197 CLR 172

De Winter v De Winter (1979) FLC ¶90-605

Norbis v Norbis (1986) FLC ¶91-712

Bennett v Bennett (1991) FLC ¶92-191

Pettitt v Dunkley [1971] 1 NSWLR 376

Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Anor [1983] 3 NSWLR 378

Soulemezis v Dudley Holdings Pty Ltd (1987) 10 NSWLR 247

Suttor v Gundowna Pty Ltd (1950) 81 CLR 418

Metwally v University of Wollongong (No. 2) (1985) 60 ALR 68

Coulton v Holcombe (1986) 162 CLR 1

Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279

Townsend and Townsend (1995) FLC ¶92-569
Chorn and Hopkins (2004) FLC ¶93-204

M v M [1998] FamCA 42

C v C [1998] FamCA 143

S and S [2000] FamCA 262

Waters v Waters (1981) FLC ¶91-019

Pierce and Pierce (1999) FLC ¶92-844

Coghan and Coghan (2005) FLC ¶93-220

Crampton v Crampton (2006) FLC ¶93-269
In the Marriage of Bevan (1995) FLC ¶92-600
Wv W (2005) FLC ¶93-222

APPELLANT:

Ms GIBBONS

RESPONDENT:

Mr GIBBONS

FILE NUMBER:

SY 2753 of 2003

APPEAL NUMBER:

EA127 of 2004

DATE DELIVERED:

31 January 2007

PLACE DELIVERED:

Melbourne

JUDGMENT OF:

Faulks DCJ, Coleman and Boland JJ

HEARING DATE:

29 July 2005

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

16 November 2004

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Connor

SOLICITOR FOR THE APPELLANT:

Bayside Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Stewart

SOLICITOR FOR THE RESPONDENT:

Watts McCray Lawyers

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as Gibbons v Gibbons.

Orders

That the Full Court allows the appeal.
That Order 7 of the orders of…

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 Lawless v Mackendrick

Details

AGLC: Lawless v Mackendrick [2007] WASC 114
Case: [2007] WASC 114
Decision Date: 29 MAY 2007

CaseChat Overview and Summary

Lawless v Mackendrick involved a dispute between Lawless, the plaintiff, and Mackendrick, the defendant, concerning the validity of an assignment of a chose in action. The case was heard in the Supreme Court of Western Australia. Lawless sought an order for damages against Mackendrick. However, Mackendrick applied for summary judgment on the basis that the assignment of the chose in action was not absolute and thus ineffective. The court had to determine whether the assignment of the chose in action was absolute and, if not, whether this affected the enforceability of the claim.

The primary legal issue was whether the assignment of the chose in action was absolute. Under section 20 of the Property Law Act 1969 (WA), an assignment of a chose in action is only effective if it is absolute, unless it is expressed to be conditional or subject to some other limitation. The court needed to examine the terms of the assignment agreement and determine if the assignment was indeed absolute. The court also had to consider whether the agreement by the assignee to reassign the chose in action to the assignor in certain events rendered the assignment conditional.

The court concluded that the assignment was not absolute as it was subject to a condition that allowed the assignee to reassign the chose in action to the assignor in specific circumstances. The court held that this condition rendered the assignment conditional, and therefore ineffective as a valid assignment. Consequently, the court granted the defendant's application for summary judgment, dismissing the plaintiff's claim. The court emphasised that the characterisation of the assignment turned on its own facts and the terms of the agreement in question.

The final orders of the court were that the defendant's application for summary judgment was granted, and the plaintiff's claim was dismissed with costs. This decision highlights the importance of ensuring that assignments of choses in action are absolute to be effective, and that any conditions or limitations can render an assignment invalid.

Orders