Okely v Duffy - [2024] WASC 316

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   OKELY & ORS v DUFFY [2024] WASC 316
CORAM:   MASTER RUSSELL
HEARD:   22 AUGUST 2024 and 2 SEPTEMBER 2024
DELIVERED          :   2 SEPTEMBER 2024
FILE NO/S:   CIV 2322 of 2022
BETWEEN:   KATHLEEN ELIZABETH OKELY, JENALLE LOUISA DUFFY and TRACEY ANNE DUFFY
Plaintiffs
AND
LORRAINE DELORES DUFFY, ANGELA MICHELLE DUFFY, TERESA LOUISE DUFFY, CHRISTINA MATILDA DUFFY and MELINDA ELLEN DUFFY as executors of the will of the late BERNARD JAMES DUFFY
First Defendants
DARREN WILLIAM DUFFY
Second Defendant

Catchwords:

Practice and procedure - Motion for judgment in default of appearance - Application for order for sale pursuant to s 126(1) of the Property Law Act 1969 (WA) - Orders for sale of property - Turns on own facts

Legislation:

Property Law Act 1969 (WA) s 126(1)

Rules of the Supreme Court 1971 (WA) O 9 r 1(4), O 13, O 13 r 1(1), O 13 r 1(3)(a), O 13 r 9, O 13 r 9(1)(a), O 13 r 9(2)(b), O 53 r 3(1), O 53 r 4(1)

Result:

Judgment entered for plaintiffs against second defendant in default of appearance

Orders for sale of property

Category: B

Representation:

Counsel:

Plaintiffs	:	Mr G Paull
First Defendants	:	No appearance
Second Defendant	:	No appearance

Solicitors:

Plaintiffs	:	Cullen Macleod
First Defendants	:	No appearance
Second Defendant	:	No appearance

Cases referred to in decision(s):

Bombara v Bombara [2010] WASC 314
Bray v Bray [1926] HCA 40; (1926) 38 CLR 542
David Alan Collison as administrator of the estate of Diane Carol Collison v Collison [2024] WASC 87
Martin-Smith v Woodhead [1990] WAR 62
Trainor v Trainor [2021] WASC 40

MASTER RUSSELL:

Introduction

The plaintiffs, Kathleen Elizabeth Okely, Jenalle Louisa Duffy and Tracey Anne Duffy, commenced this proceeding by way of writ of summons indorsed with a statement of claim on 14 December 2022, seeking an order for the sale of land in lieu of partition pursuant to s 126(1) of the Property Law Act 1969 (WA) (Act).
By ex parte motion filed on 15 July 2024, the plaintiffs apply for judgment in default of appearance against the second defendant, Darren William Duffy, pursuant to O 13 r 9 of the Rules of the Supreme Court 1971 (WA) (RSC).
The land the subject of the plaintiffs' application forms part of the land situated at and known as 95 Woodvale Drive, Woodvale, Western Australia, being the land more particularly described as:
1.542/2558 undivided shares of Lot 36 on Diagram 32799 and being the whole of the land contained in Certificate of Title Volume 1486 Folio 128 (Share Title 1); and
2.2016/2558 undivided shares of Lot 36 on Diagram 32799 and being the whole of the land contained in Certificate of Title Volume 134 Folio 149A (Share Title 2),
(together the Land).
A copy of the certificates of title are attached to the affidavit of Gregory Keith Paull sworn on 15 July 2024 as…

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 Okely v Duffy

Details

AGLC: Okely v Duffy [2024] WASC 316
Case: [2024] WASC 316
Decision Date: 2 SEPTEMBER 2024

CaseChat Overview and Summary

In the case of Okely v Duffy, the defendant, Duffy, applied for judgment in default of appearance due to the plaintiff, Okely, failing to appear in court. The dispute involved the application for an order for the sale of a property under section 126(1) of the Property Law Act 1969 (WA). The court had to determine whether the plaintiff's absence justified granting judgment in default and whether the order for sale should proceed. The crux of the matter lay in the interpretation and application of the statutory provisions and the principles governing default judgments and property sales.

The court was required to decide if the plaintiff's non-appearance warranted a judgment in default and whether the application for the sale of the property should proceed under the circumstances. The court considered the procedural requirements under the Property Law Act and the case law regarding defaults in appearance and property sales. The court examined whether the defendant had established a prima facie case and if the plaintiff's absence was justified or excusable.

The court found that the plaintiff's absence was not justified or excusable, and the defendant had demonstrated a prima facie case. The court proceeded to grant judgment in default of appearance and ordered the sale of the property. The reasoning was based on the statutory authority and the precedent that, in the absence of a valid excuse for non-appearance, the court could proceed with the matters before it. The court concluded that the orders for the sale of the property were appropriate under the circumstances presented.

The final orders included granting the defendant's application for judgment in default of appearance and ordering the sale of the property as per the provisions of the Property Law Act. The court's decision was grounded in the statutory framework and the procedural fairness inherent in the judicial process.

Orders