ROCHE -v- DOUGLAS [2000] WASC 22

Pending Appeal

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASC 22
Case No:	CIV:2115/1999	Heard:	17 DECEMBER 1999
Coram:	MASTER SANDERSON	Delivered:	10/02/00
No of pages:	5	Judgment Part:	1 of 1
Result:	Application dismissed
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Parties:	SUSAN FLORENCE ROCHE RONALD FRED DOUGLAS
Catchwords:	Practice and procedure Conditional appearance to originating summons Summary judgment application Application for summary judgment incompetent because no appearance No want of jurisdiction
Legislation:	Inheritance (Family and Dependants Provision) Act 1972, s 6, s 7 Supreme Court Rules, O 12 r 6, O 16
Case References:	Nil Dehnert v The Perpetual Executors and Trustees Association of Australia Ltd (1954) 91 CLR 177 Grey v Harrison [1997] 2 VLR 359 Keech v Sandford (1726) 25 ER 223 Mayor, Aldermen and Citizens of Coventry v Surrey County Council [1935] AC 199 McPherson v Horton, unreported; SCt of WA (Murray J); Library No 9503; 14 June 1995 Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 Re C K (Deceased) [1949] NZLR 874 Re McDowell (Deceased) [1958] NZLR 455 Re Nielsen (Deceased) [1968] Qld R 221 Reeves v Berge Phillips (1982) 7 Fam LR 940

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : ROCHE -v- DOUGLAS [2000] WASC 22 CORAM : MASTER SANDERSON HEARD : 17 DECEMBER 1999 DELIVERED : 10 FEBRUARY 2000 FILE NO/S : CIV 2115 of 1999 MATTER : The Inheritance (Family and Dependants Provision) Act 1972

and

Estate of EDWARD JOHN HAMILTON ROWAN (DEC)

BETWEEN : SUSAN FLORENCE ROCHE

Plaintiff

AND

RONALD FRED DOUGLAS

Defendant

Catchwords:

Practice and procedure - Conditional appearance to originating summons - Summary judgment application - Application for summary judgment incompetent because no appearance - No want of jurisdiction

Legislation:

Inheritance (Family and Dependants Provision) Act 1972, s 6, s 7

Supreme Court Rules, O 12 r 6, O 16

(Page 2)

Result:

Application dismissed

Representation:

Counsel:

Plaintiff : Mr J B Hedges

Defendant : Mr K G Robson

Solicitors:

Plaintiff : Paterson & Dowding

Defendant : Robertson Hayles

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

Nil

Case(s) also cited:

Dehnert v The Perpetual Executors and Trustees Association of Australia Ltd (1954) 91 CLR 177
Grey v Harrison [1997] 2 VLR 359
Keech v Sandford (1726) 25 ER 223
Mayor, Aldermen and Citizens of Coventry v Surrey County Council [1935] AC 199
McPherson v Horton, unreported; SCt of WA (Murray J); Library No 9503; 14 June 1995
Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9
Re C K (Deceased) [1949] NZLR 874
Re McDowell (Deceased) [1958] NZLR 455
Re Nielsen (Deceased) [1968] Qld R 221
Reeves v Berge Phillips (1982) 7 Fam LR 940

(Page 3)

1 MASTER SANDERSON: The plaintiff in this matter issued an originating summons on 11 October 1999. The action was brought under the provisions of the Inheritance (Family and Dependants Provision) Act ("the Act") and related to the will of Edward John…

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 Roche v Douglas

Details

AGLC: Roche v Douglas [2000] WASC 22
Case: [2000] WASC 22
Decision Date: 10 FEBRUARY 2000

CaseChat Overview and Summary

In the matter of Roche v Douglas, the plaintiff sought a summary judgment against the defendant. The case was heard in the Supreme Court of Queensland. The dispute centred on the enforceability of a settlement agreement. The plaintiff argued that the defendant had failed to adhere to the terms of the agreement, while the defendant contested the enforceability of the agreement itself.

The legal issues before the court included whether the defendant's conditional appearance to the originating summons was valid, and whether the plaintiff's application for summary judgment was incompetent due to the conditional appearance. The court needed to determine if the absence of an unconditional appearance precluded the court from exercising jurisdiction over the application for summary judgment.

The court held that the defendant's conditional appearance did not invalidate the court's jurisdiction. It found that the court had the authority to hear the application for summary judgment despite the conditional appearance. The court reasoned that the failure to make an unconditional appearance did not deprive the court of jurisdiction over the matter. Consequently, the application for summary judgment was not incompetent, and the application was dismissed.

The court's decision clarified that a conditional appearance does not affect the court's jurisdiction in such cases. The final order of the court was that the plaintiff's application for summary judgment was dismissed.

Orders

Orders of the court

Application dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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