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…

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 Orrman v Orrman

Details

AGLC: Orrman v Orrman [2009] WASCA 30
Case: [2009] WASCA 30
Decision Date: 2 FEBRUARY 2009

CaseChat Overview and Summary

The case of Orrman v Orrman involves 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 deceased brother, Carl Orrman. The dispute revolves around the administration of Carl's estate and the property he left behind. The appeal before the court concerns whether the appeal should be dismissed due to the appellant's failure to comply with an order of the registrar and the Supreme Court (Court of Appeal) Rules 2005 (WA) (the Rules). The Rules confer jurisdiction on a single judge to dismiss an appeal if the appellant has not obeyed the Rules or any order made under them.

The primary legal issues the court needed to address were whether the appellant's failure to comply with the order of the registrar and the Rules justified the dismissal of the appeal. Rule 43(2)(g)(ii) empowers a single judge to dismiss an appeal if the appellant has not adhered to the Rules or any orders made under them. Rule 10(2) authorises the registrar to make any order that a single judge may make, with certain exceptions that are not relevant here. Rule 43(2)(h) allows a single judge to make an interim order in an appeal, which includes any order that the Court of Appeal may make before the appeal is concluded, excluding an order giving or refusing to give leave to appeal.

The court examined the background of the dispute, as outlined by EM Heenan J in Orrman v Orrman [No 2] [2008] WASC 17. The property in question had been in the Orrman family for generations and was originally the family home of the respondent's parents. After the death of the respondent's father, the property came into the possession of the respondent's mother. Upon her death, it was devised to the respondent and his brother, Carl Orrman, as tenants in common in equal shares. Following Carl's death, his share was transferred to the respondent's wife, Yvonne Orrman, in accordance with his will. The court had previously ordered the sale of the land, a decision which is now under appeal.

After reviewing the appellant's non-compliance with the order of the registrar and the Rules, the court determined that the appeal should be dismissed. The appellant's failure to comply with the order and the Rules justified the dismissal of the appeal, as per Rule 43(2)(g)(ii). The court concluded that the appeal did not meet the criteria for continuation and was therefore dismissed.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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]

Ratio Decidendi

Legal Principle Established

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