Orrman v Orrman - [2009] WASCA 30

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: ORRMAN -v- ORRMAN [2009] WASCA 30

CORAM: McLURE JA
PULLIN JA

HEARD: 22 JANUARY 2009

DELIVERED : 2 FEBRUARY 2009

FILE NO/S: CACV 115 of 2008

BETWEEN: EVILD HENRICK ORRMAN
Appellant
AND
YVONE ORRMAN
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :EM HEENAN J
Citation  :ORRMAN -v- ORRMAN [No 2] [2008] WASC 17
File No  :CIV 1201 of 2006

Catchwords:

Appeal - Appeal instituted out of time - No reasons given for delay - Noncompliance with rules - Failure to comply with orders of registrar - Whether appeal should be dismissed

Legislation:

Property Law Act 1969 (WA), s 126
Supreme Court (Court of Appeal) Rules 2005 (WA), r 3(1), r 10(2), r 32, r 43(2)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: No appearance

Solicitors:

Appellant: In person
Respondent: No appearance

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

Orrman v Orrman [No 2] [2008] WASC 17

REASONS FOR JUDGMENT OF THE COURT: This appeal involves a dispute between the appellant and respondent who are the registered proprietors of a property at 44 Hammad Street, Palmyra as tenants in common in equal shares. The respondent is the widow of the appellant's brother.
The appeal has been listed to consider whether the appeal should be dismissed due to the failure of the appellant to comply with an order of the registrar made on 11 December 2008 but dated 15 December 2008 and the failure of the appellant to comply with the Supreme Court (Court of Appeal) Rules 2005 (WA) (the Rules). Rule 43(2)(g)(ii) confers jurisdiction on a single judge to dismiss an appeal if the appellant has not obeyed the Rules or any order made under them.
Rule 10(2) confers jurisdiction on the registrar of the court to make any order that a single judge may make with certain exceptions which are not relevant for present purposes. Rule 43(2)(h) authorises a single judge to make an interim order in an appeal. An interim order includes 'any other order that the Court of Appeal may make before the appeal is concluded, other than an order giving or refusing to give leave to appeal': see r 3(1).
The background to the dispute between the parties is explained by EM Heenan J in Orrman v Orrman [No 2] [2008] WASC 17 as follows:
I must describe a little of the history and background of this land. This particular block of land has been in the ownership of various members of the Orrman family for a long time. It was originally the family home of the defendant's parents. Following the death of the defendant's father, it came into ownership of the defendant's mother.
When Mrs Orrman (senior) died, it was devised under her will to the defendant, Evild Orrman and to his brother Carl Orrman, as tenants in common in equal shares. Carl Orrman died on 20 August 2001, leaving a will dated 21 March 1996, in which he left his real and personal estate to his widow, the plaintiff, Yvonne Orrman. That will was admitted to probate on 12 October 2001, and must therefore be treated by me as the valid and effective will of the deceased, Carl Orrman.
Pursuant to the administration of Carl's estate, in accordance with that will, Carl's share of the property was transferred to the plaintiff on 7 November 2001. That is how she came to be one of the two tenants in common of equal shares on the title of the property. [6] ‑ [8]
EM Heenan J held that on the respondent's application, an order for sale of the land should be made pursuant to s 126 of the Property Law Act 1969 (WA), and it is that order which is the subject of appeal. There was a counterclaim which was dismissed. The basis for the counterclaim was described by EM Heenan J as follows:
The basis for this counterclaim is set out in the pleadings which have been filed. It is asserted on Mr Orrman's behalf that from a date in March 1998 it was the common intention of himself and his brother Carl that he would receive Carl's share of the property on his death. This pleading alleges that on a date in March 1998, Carl agreed with Evild that should Carl predecease the defendant, the defendant would receive Carl's share; secondly, that Carl would execute a will to give effect to this intention; and thirdly, that he, Evild, would pay all of the outgoings on the property.
The pleading asserts that on this date in March 1998 Carl executed a document in which he recorded his intention to leave Carl's share to Evild. This is referred to in the pleadings as 'the 1998 document'. According to the pleadings, from March 1998 onwards until Carl's death, and in reliance on this alleged common intention, and to his detriment, the defendant expended his personal labour on the upkeep of the property and paid all outgoings on the property in their entirety.
Following Carl's death on 20 August 2001, again in reliance on the alleged common intention and to his detriment, and in the belief that Carl's share would be transferred to the defendant, Mr Evild Orrman pleads that he expended his personal labour upon the upkeep of the property, paid all outgoings on the property in their entirety, and that following Carl's death he gave to Mrs Yvonne Orrman the 1998 document; that is the document recording the alleged common intention and the intention to make the will leaving the property to Evild.
Mr Orrman, the defendant and counterclaiming plaintiff, then pleads that on 7 November 2001, notwithstanding the alleged common intention, Carl's share was transferred to Mrs Yvonne Orrman. It is true that it was transferred on that date.
He says that he subsequently discovered that Carl's share had been transferred to the plaintiff, notwithstanding the alleged common intention. He pleads that by taking Carl's share with knowledge of this common intention, Mrs Orrman holds Carl's share on trust for him, or alternatively that she is liable to account to him for an amount equivalent to the value of Carl's share.
The basis for this in the pleading is that Carl's share was subject to a constructive trust in favour of the defendant, and that Mrs Orrman knowingly and in breach of the trust took the property with knowledge that it was being transferred in breach of this constructive trust.
The pleading then goes on to seek, as an alternative to a declaration or order as to the absolute ownership of the land in favour of the defendant, the physical partition of the land and subdivision. The pleading relies again essentially upon the history which I have already narrated. [14] ‑ [20]
The respondent denied having any knowledge of any intention, arrangement or other understanding by her husband to give or arrange to have transferred to the appellant, his own half share in the property. The respondent denied that a document was prepared in March 1998 to set out the respondent's alleged intention to transfer by will the half interest to the appellant and said that she had never seen nor heard of such a document. EM Heenan J continued:
[t]he copy of the will admitted to probate of the deceased, Carl Sigfrid Orrman, dated 21 March is exhibit 7 in these proceedings. The grant of probate has not been tendered as evidence and when I raised this with counsel for the plaintiff, counsel submitted, in my view correctly, that it was not necessary in view of the admission that probate of this will was granted by this court on 12 October 2001.
I am satisfied that that submission is correct and should be acted upon. The significance of the grant of probate on 12 October 2001 (even if a grant in common form as this probably was) is that it is a judgment of the court that that testament is the last valid will of the deceased. I can only act and any other court can only act, on the validity and conclusiveness of that grant of probate. This is, it seems to me, an insuperable obstacle to Mr Evild Orrman's contention that he derived an entitlement to the whole of this property through some other will of his deceased brother, made in March 1998.
…
Even if such a will of March 1998 had been produced, it would not have been open for me to act on it so long as the grant of probate of 12 October 2001 stands. If some later will, alleged to be valid, is discovered after a grant of probate in common form, the appropriate course is for any person wishing to propound that later will, or to take benefits under it, to apply for a revocation to the grant of probate and seek probate instead of the later will.
This has never been done or attempted in this litigation and although Mr Orrman is unrepresented and obviously has only the most limited knowledge of legal doctrine and procedure, it is not as if he has gone unadvised throughout the duration of this litigation, which commenced in 2006. The record shows that a number of solicitors have acted for him during the currency of this litigation and in relation to the grant of probate of Carl's will of 12 October 2001, the admission was formally made after and upon legal advice.
That being the case, I can only assume that it has never occurred to anyone that there is any reason whatever to challenge the grant of probate of the March 1996 will. As I have said, as long as it stands, I must give effect to it. Mr Orrman, when giving evidence, did not support his pleaded case that, rather than some will of March 1998, there was some other document as pleaded. [27], [28], [30] ‑ [32]
As a result, the counterclaim was dismissed and judgment was given for the respondent on 30 January 2008.
The appellant did not file an appeal notice until nearly 10 months later by notice dated 19 November 2008. An application for an extension of time was therefore necessary.
The application for an extension was supported by an 'affidavit' filed on 11 December 2008. The affidavit was in a form which did not comply with the rules but it was nevertheless accepted for filing by the registry. It contains a handwritten statement ranging over dealings with the property and other dealings the appellant claimed to be relevant. There was no explanation for the delay in filing the notice of appeal.
The Court of Appeal has authority to make interim orders to facilitate the hearing of an appeal. Because a single judge has power to make such an order, then so does the registrar. The registrar made an order on 11 December 2008, requiring the appellant to file and serve an affidavit explaining the reasons for delay in commencing the appeal. This affidavit was to be filed by 19 December 2008. That order has not been complied with.
The rules also required the filing of the appellant's case. See r 32 for the material which is required to be included in the appellant's case. On 19 November 2008, the appellant lodged a document which was described as the appellant's case but it essentially had no content. It did not comply with r 32(3), (4), (5), (6), (7) or (8). The registry did not accept the document for filing and the registrar handed it back to him at the appointment on 11 December 2008. Even if the document is treated as having been filed on 19 November 2008, and treated as the appellant's case, it does not comply with the rules.
The appellant agrees that on 11 December 2008, the registrar spent nearly an hour and a half with the appellant (and his friend Ms Zeman) discussing the appeal and explaining what he would need to do to progress it and the forms that were required. The registrar explained that the affidavit in support of the application for an extension of time was not in proper form and that it did not explain the reasons for delay, and that this was the reason why the registrar was making the order requiring the filing of a further affidavit.
The question therefore is whether the appeal should be dismissed because of noncompliance with the order requiring the filing of the further affidavit and noncompliance with the rules requiring the filing of the appellant's case complying with r 32 within 35 days after the filing of the appeal notice.
In addition the application to extend time in which to appeal is before the court.
The court is satisfied that there has been noncompliance with the order made by the registrar for the filing of an affidavit explaining the reasons for the gross delay in commencing the appeal. The failure occurred notwithstanding that the registrar had taken the time to explain what the rules required. Further, there is noncompliance with the rules concerning the content of the appellant's case. Finally, the appellant has also failed to identify any error, nor is there any identifiable error, in EM Heenan J's reasons for decision. In those circumstances the appeal should be dismissed.