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Powell v In De Braekt

Powell v In De Braekt

Case [2005] WASC 8 18 February 2005

Civil Litigation & Procedure

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POWELL -v- IN DE BRAEKT [2005] WASC 8

Link to Appeal :

[2007] WASCA 55

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASC 8
Case No:	CIV:1661/2004	Heard:	13 JANUARY 2005
Coram:	ACTING MASTER CHAPMAN	Delivered:	18/02/05
No of pages:	9	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
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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…

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 Powell v In De Braekt

Details

AGLC: Powell v In De Braekt [2005] WASC 8
Case: [2005] WASC 8
Decision Date

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.

Orders