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Shepherd v Baster

Shepherd v Baster

Case [2005] WASC 23 8 March 2005

Civil Litigation & Procedure

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SHEPHERD & ANOR -v- BASTER [2005] WASC 23

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASC 23
Case No:	CIV:2083/2004	Heard:	25 NOVEMBER 2004
Coram:	MASTER SANDERSON	Delivered:	8/03/05
No of pages:	6	Judgment Part:	1 of 1
Result:	Statement of claim struck out Leave to replead
Category:	B
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Parties:	JUSTIN LESLIE SHEPHERD ERIN JENNIFER SHEPHERD KAREN LESLIE BASTER
Catchwords:	Practice and procedure Application to strike out statement of claim Turns on own facts
Legislation:	Property Law Act 1969, s 34(1)(a)
Case References:	Redden v Wilks & Anor [1979] WAR 161 Bahr v Nicolay [1987] 78 ALR 1 Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) 40 NSWLR 622 Coal Cliff Collieries v Sijehama Pty Ltd (1991) 24 NSWLR 1 Foran v Wight (1989) 168 CLR 385 Gaston v United Newspapers Ltd (1915) 32 TLR 143 Kimberley Downs Pty Ltd & Ors v State of Western Australia & Anor, unreported; SCt of WA; Library No 6414; 25 August 1986 Masters v Cameron [1954] 91 CLR 353 Millington v Loring (1880) 6 QBD 190 Niven v Grant (1903) 29 VLR 102 Packard v Transport Trading Agency Co Ltd (1912) 14 WALR 191 Queensland v Pioneer Concrete (Qld) Pty Ltd (1999) ATPR 41-691 Rod Hodgson (Trading) Pty Ltd v Belvedere Motors (Hurstville) Pty Ltd [1971] 1 NSWLR 472 Sinclair Scott & Co Ltd v Naughton (1929) 43 CLR 310 Speidel v Plato Films Ltd [1961] AC 1090 Wright v Somerton [2004] QSC 231

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : SHEPHERD & ANOR -v- BASTER [2005] WASC 23 CORAM : MASTER SANDERSON HEARD : 25 NOVEMBER 2004 DELIVERED : 8 MARCH 2005 FILE NO/S : CIV 2083 of 2004 BETWEEN : JUSTIN LESLIE SHEPHERD

ERIN JENNIFER SHEPHERD

Plaintiffs

AND

KAREN LESLIE BASTER

Defendant

Catchwords:

Practice and procedure - Application to strike out statement of claim - Turns on own facts

Legislation:

Property Law Act 1969, s 34(1)(a)

Result:

Statement of claim struck out

Leave to replead

(Page 2)

Category: B

Representation:

Counsel:

Plaintiffs : Mr S K Shepherd

Defendant : Mr A R MacKinlay

Solicitors:

Plaintiffs : Bennett & Co

Defendant : MacKinlays

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

Redden v Wilks & Anor [1979] WAR 161

Case(s) also cited:

Bahr v Nicolay [1987] 78 ALR 1
Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) 40 NSWLR 622
Coal Cliff Collieries v Sijehama Pty Ltd (1991) 24 NSWLR 1
Foran v Wight (1989) 168 CLR 385
Gaston v United Newspapers Ltd (1915) 32 TLR 143
Kimberley Downs Pty Ltd & Ors v State of Western Australia & Anor, unreported; SCt of WA; Library No 6414; 25 August 1986
Masters v Cameron [1954] 91 CLR 353
Millington v Loring (1880) 6 QBD 190
Niven v Grant (1903) 29 VLR 102
Packard v Transport Trading Agency Co Ltd (1912) 14 WALR 191
Queensland v Pioneer Concrete (Qld) Pty Ltd (1999) ATPR 41-691
Rod Hodgson (Trading) Pty…

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 Shepherd v Baster

Details

AGLC: Shepherd v Baster [2005] WASC 23
Case: [2005] WASC 23
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Western Australia, the plaintiffs, Justin Leslie Shepherd and Erin Jennifer Shepherd, sought to enforce a purported oral agreement to purchase property from the defendant, Karen Leslie Baster. The oral agreement, which was intended to be evidenced in writing, was challenged by the defendant on the basis that it contravened the statutory requirement for the creation or disposition of an interest in land to be in writing, as stipulated in the Property Law Act 1969. The court was required to determine whether the plaintiffs' statement of claim could be amended to adequately plead a cause of action and whether the proposed amendment would effectively address the statutory requirements.

The court held that the plaintiffs' initial statement of claim was insufficient as it contained an ineffective oral agreement which could not be specifically enforced. The court noted that even though there was an attempt to document the oral agreement, this did not render the agreement enforceable under the statute. The plaintiffs attempted to remedy this by proposing an amended statement of claim which included an enforceable written contract, separate from the oral agreement. The court found that the plaintiffs' proposed amendment did not adequately address the statutory requirements and did not clarify the relationship between the oral agreement and the written contract. Additionally, the court found that the amendment was not sufficiently detailed regarding a modification to the written contract.

The court decided to strike out the plaintiffs' statement of claim and allow them to bring in a fresh minute. The court also noted that the plaintiffs were entitled to amend without leave, pursuant to O 20 r 8(4). However, to avoid further delay, the matter was treated as an application for leave to amend in terms of the minute. The court will hear the parties as to the form of orders and as to costs.

Orders