Michele-Maree Gannaway as Administrator of the Estate of Nancy Cloonan Hall v Audrey Frances Hall as Executor of the Estate of the late Kenneth Duncan Hall [No 2]
[2010] WASCA 173
•19 AUGUST 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: MICHELE-MAREE GANNAWAY as Administrator of the Estate of NANCY CLOONAN HALL -v- AUDREY FRANCES HALL as Executor of the Estate of the late KENNETH DUNCAN HALL [No 2] [2010] WASCA 173
CORAM: PULLIN JA
NEWNES JA
HEARD: 19 AUGUST 2010
DELIVERED : 19 AUGUST 2010
FILE NO/S: CACV 53 of 2007
BETWEEN: MICHELE-MAREE GANNAWAY as Administrator of the Estate of NANCY CLOONAN HALL
Appellant
AND
AUDREY FRANCES HALL as Executor of the Estate of the late KENNETH DUNCAN HALL
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :JENKINS J
Citation :AUDREY FRANCES HALL as Executrix of the Will of KENNETH DUNCAN HALL (Dec) v HALL [2007] WASC 34
File No :CIV 2073 of 2003
Catchwords:
Practice and procedure -Application to be joined as appellant - Turns on own facts
Legislation:
Nil
Result:
Application dismissed
Category: B
Representation:
Counsel:
Appellant: No appearance
Respondent: No appearance
Solicitors:
Appellant: Chris Stokes & Associates
Respondent: McCallum Donovan Sweeney
Case(s) referred to in judgment(s):
Audrey Frances Hall as Executrix of the Will of Kenneth Duncan Hall v Hall [2007] WASC 34
Law v Audrey Frances Hall as Executrix of the Estate of the late Kenneth Duncan Hall [2009] WASCA 86
PULLIN JA: The background that I am going to relate is to be found in other decisions of the Supreme Court General Division and the Court of Appeal which I will refer to below.
That background is that Nancy Cloonan Hall, who I will call Nancy, borrowed money from a company, Engineering Facilities Pty Ltd. The loan was secured by a mortgage over certain property of Nancy. Nancy's brother, Kenneth Duncan Hall, paid out the debt and took a transfer of the mortgage from Engineering Facilities Pty Ltd. The debt was not repaid by Nancy. Kenneth Hall died and his widow, as executrix of the estate of Kenneth Hall, sued Nancy and recovered possession of the properties over which the mortgage had been registered. All of this is set out in Jenkins J's reasons for decision in Audrey Frances Hall as Executrix of the Will of Kenneth Duncan Hall v Hall [2007] WASC 34, delivered on 19 February 2007.
Nancy commenced this appeal. She subsequently died and now the appeal is brought by the administrator of her estate. Mr Law, the present applicant, sought to appeal against the decision of Jenkins J but that appeal was dismissed. See the reasons in Law v Audrey Frances Hall as Executrix of the Estate of the late Kenneth Duncan Hall [2009] WASCA 86. The reasons are self-explanatory but I do point out that in the last paragraph [10], the court concluded that the appellant (Mr Law) had no standing to bring the appeal.
Having failed in that respect, Mr Law now seeks to intervene in this appeal and be joined as an appellant. He persists in his attempt to challenge Jenkins J's decision because he claims that some time in the past he lent Nancy money, and that he had agreements with Nancy which entitled him to an interest in the properties which were the subject of the mortgage referred to in Jenkins J's decision.
The agreements exhibited to the affidavit filed in these proceedings do not support that contention. Mr Law also says that he wants proof that the mortgage to Engineering Facilities Pty Ltd - that is, the security granted by Nancy to Engineering Facilities Pty Ltd - is 'legitimate and real and not cooked up'. The affidavit filed in support here does not assert that it is illegitimate, 'not real and not cooked up' but only asserts that the respondent must prove to his satisfaction that the mortgage was legitimate and 'real and not cooked up'.
In oral submissions, Mr Law has gone a little further and contended that he has a claim that the mortgage was not legitimate but there is not sufficient material before this court to reach that conclusion.
With that background, it is only necessary to say that the conclusion reached by the President and myself in Law v Audrey Frances Hall as Executrix of the Estate of the late Kenneth Duncan Hall [2009] WASCA 86 applies with equal force to this application and as a result the application to be joined in this appeal must be dismissed. For those reasons I would dismiss the application.
NEWNES JA: I agree with Pullin JA.