Powell v In De Braekt

Case [2005] WASC 8


POWELL -v- IN DE BRAEKT [2005] WASC 8


Link to Appeal :

SUPREME COURT OF WESTERN AUSTRALIACitation No:[2005] WASC 8
Case No:CIV:1661/200413 JANUARY 2005
Coram:ACTING MASTER CHAPMAN18/02/05
9Judgment Part:1 of 1
Result: Application dismissed
B
PDF Version
Parties:MIA MARY POWELL
ANNA MARIA HUBERTINA IN DE BRAEKT

Catchwords:

Practice and procedure
Summary judgment
Strike out statement of claim
Limitation period
Doctrine of laches
Turns on own facts

Legislation:

Limitation Act 1935, s 47
Property Law Act 1969, s 34
Supreme Court Act 1935, s 25(2)

Case References:

Cia de Seguros Imperio v Heath (REBX) Ltd & Ors (2001) 1 WLR 112
Dey v Victorian Railway Commissioners (1949) 79 CLR 62
Renowden v McMullin & Ors (1970) 123 CLR 584
Secretary, Department of Social Security v Agnew & Anor [2000] 96 FCR 357
Soar v Ashwell (1893) 2 QB 390

Baburin v Baburin [1990] 2 Qd R 101
Clay v Clay (1999) 20 WAR 427
Clegg v Edmondson (1857) 8 De GM & G 787
Cohen v Cohen (1929) 42 CLR 91
DoCarmo & Ford Excavations Pty Ltd (1984) 154 CLR 234
Jakovljevic v Doslov [2000] WASCA 131
Kidner v Department of Social Security (1993) 18 AAR 545
Mayne v The Public Trustee (1945) 70 CLR 395
Menz & Anor v Same [2000] WASC 288
Morgan v Banning (1999) 20 WAR 474
Parsons and Parsons v McBain (2001) 109 FCR 120
Radonich v Radonich [1999] WASC 165
Re Blake [1932] 1 Ch 54
Soar v Ashwell [1893] 2 QB 390
Wardley v The State of Western Australia (1992) 175 CLR 514

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
    IN CHAMBERS
CITATION : POWELL -v- IN DE BRAEKT [2005] WASC 8 CORAM : ACTING MASTER CHAPMAN HEARD : 13 JANUARY 2005 DELIVERED : 18 FEBRUARY 2005 FILE NO/S : CIV 1661 of 2004 BETWEEN : MIA MARY POWELL
    Plaintiff

    AND

    ANNA MARIA HUBERTINA IN DE BRAEKT
    Defendant



Catchwords:

Practice and procedure - Summary judgment - Strike out statement of claim - Limitation period - Doctrine of laches - Turns on own facts




Legislation:

Limitation Act 1935, s 47


Property Law Act 1969, s 34
Supreme Court Act 1935, s 25(2)


Result:

Application dismissed



(Page 2)

Category: B

Representation:


Counsel:


    Plaintiff : Mr J G Hanly
    Defendant : Mr J G M Fiocco


Solicitors:

    Plaintiff : Hotchkin Hanly
    Defendant : Fiocco's Lawyers



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

Cia de Seguros Imperio v Heath (REBX) Ltd & Ors (2001) 1 WLR 112
Dey v Victorian Railway Commissioners (1949) 79 CLR 62
Renowden v McMullin & Ors (1970) 123 CLR 584
Secretary, Department of Social Security v Agnew & Anor [2000] 96 FCR 357
Soar v Ashwell (1893) 2 QB 390

Case(s) also cited:



Baburin v Baburin [1990] 2 Qd R 101
Clay v Clay (1999) 20 WAR 427
Clegg v Edmondson (1857) 8 De GM & G 787
Cohen v Cohen (1929) 42…

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Powell v In De Braekt [2005] WASC 8
Case
[2005] WASC 8
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CaseChat Overview and Summary

In the matter of Powell v In De Braekt, the Supreme Court of Western Australia was presented with an application by the defendant to dismiss the plaintiff's action on several grounds, including summary judgment, abuse of process, and statute barring under the Limitation Act 1935. The plaintiff's claim was based on the assertion that she was a beneficiary of an express or constructive trust, and sought either a declaration or equitable compensation. The defendant argued that the plaintiff had abandoned her express trust claim, that any express trust claim was barred by the requirement for written evidence under the Property Law Act 1969, and that any constructive trust claim was statute barred.

The court considered whether the plaintiff's omission of specific reference to an express trust in her statement of claim constituted an abandonment of that claim, as argued by the defendant. The court found that the omission did not necessarily equate to an abandonment, and that the claim for relief related to a trust, though not explicitly an express trust, remained viable. Regarding the statute of limitations, the court noted that the question of when the cause of action accrued was not clear and thus inappropriate for summary determination. The court also concluded that the doctrine of laches, which could potentially bar the plaintiff's claim, was a matter better left for the full trial where all facts could be assessed. The application for summary judgment and for the statement of claim to be struck out was dismissed by the court, which determined that the case turned on its own specific facts and needed to be heard in full.

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