Simonsen v Simonsen - [2024] WASC 426

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   SIMONSEN -v- SIMONSEN [2024] WASC 426
CORAM:   MASTER RUSSELL
HEARD:   30 JULY 2024
DELIVERED          :   18 NOVEMBER 2024
FILE NO/S:   CIV 1002 of 2024
BETWEEN:   MARK SIMONSEN
Applicant
AND
CHRISTOPHER SIMONSEN
Defendant

Catchwords:

Declaratory relief - Deed of settlement - Whether deed of settlement enforceable - Deed only signed by one party - No evidence of concluded agreement - Deed unenforceable - Turns on own facts

Abuse of process - Claim based on substantially same facts as claims in earlier proceedings which were dismissed - Turns on own facts

Application to extend limitation period - No basis upon which limitation period may be extended - Turns on own facts

Legislation:

Limitation Act 2005 (WA), Div Pt 3, s 3(1), s 13, s 18, s 27, s 38, s 42
Property Law Act 1969 (WA), s 9(1)
Rules of the Supreme Court 1971 (WA), O 18 r 6
Supreme Court Act 1935 (WA), s 25(6)

Result:

Application and proceeding dismissed

Category: B

Representation:

Counsel:

Applicant	:	In person
Defendant	:	No appearance

Solicitors:

Applicant	:	In person
Defendant	:	No appearance

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

Amott v Holden (1852) 18 QB 593; 118 ER 224
Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Australian Competition and Consumer Commission v MSY Technology Pty Ltd (2012) 201 FCR 378
Barker v Duke Group Ltd (in liq) [2005] SASC 81
Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256
Bombardier Inc v AVWest Aircraft Pty Ltd [2020] WASCA 2
Christmas Island Resort Pty Ltd v Geraldton Building Co Pty Ltd (No 5) (1997) 18 WAR 334
Connelly v Director of Public Prosecutions [1964] AC 1254
Dewar v Ollier [2018] WASC 212
Do Carmo v Ford Excavations Pty Ltd [1984] HCA 17; (1984) 154 CLR 234
Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421
Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407; (2009) 76 NSWLR 603
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Halford v Halford [2022] WASCA 1
Hart v Milne [2024] WASC 229
Hawkins v Clayton (1988) 164 CLR 539
Hunter v Chief Constable of West Midlands Police [1982] AC 529
Johnson v Gore Wood & Co [2002] 2 AC 1
Lachlan v HP Mercantile Pty Ltd [2015] NSWCA 130; (2015) 89 NSWLR 198
Letang v Cooper [1964] 3 WLR 573; [1964] 2 All ER 929 (CA); [1965] 1 QB 232
Mariotti v Wanneroo North Pty Ltd [2008] WASCA 243
Metropolitan Bank Ltd v Pooley (1885) 10 App Cas 210
Moti v R [2011] HCA 50; (2011) 86 ALJR 117l
Netglory Pty Ltd v Caratti [2013] WASC 364
PNJ v R [2009] HCA 6; (2009) 83 ALJR 384
Rogers v R [1994] HCA 42; (1994) 181 CLR 251
Schwartz v Hadid [2013] NSWCA 89
Sheldon v McBeath (1993) Aust Tort Reports 81 - 209
Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4; (2015) 48 WAR 93
Smart v Prisoner Review Board (WA) [2012] WASC 48
Spoor v Green (1874) LR 9 Ex 99
The Millstream Pty Ltd v Schultz [1980] 1 NSWLR 547
Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507
Turner v Moon [1901] 2 Ch 825
UBS AG v Tyne as Trustee of the Argot Trust [2018] HCA 45; (2018) 265 CLR 77
Walton v Gardiner (1993) 177 CLR 378
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
Williams v Spautz (1992) 174 CLR 509
Wright v Lemon [2024] WASCA 19

MASTER RUSSELL:

Introduction

The plaintiff, Mark Simonsen, commenced this proceeding by originating summons for declaratory relief filed on 2 January 2024 (Application). He seeks orders for 'Declaratory Relief for the performance of a Deed of Settlement'. On 23 January 2024, the plaintiff filed an application for an extension of time to bring the Application.
The defendant, Christopher Simonsen, is the plaintiff's nephew. On 18 April 2024, I made orders for substituted service of the originating summons, affidavit and other materials filed in support of the relief sought (Application Documents) on the defendant.
On 29 April 2024, the plaintiff filed an affidavit of service sworn by him on that date verifying that he had effected substituted service of the Application Documents on the defendant in accordance with the orders made on 18 April 2024. The defendant has not entered an appearance.
A copy of the Deed of Settlement, the subject of the Application is attached to the Application marked 'A' (Deed), together with a document titled 'Statement of Claim and Legal Authorities in support of originating Summons for Declaratory relief' (Statement of Claim). The Deed is dated 4 May 2006. It is signed by the plaintiff but is not signed by or on behalf of the defendant.
This is not the first proceeding brought by the plaintiff seeking relief in relation to the Deed. He previously issued proceedings in 2012, in this Court,[1] and in the District Court of Western Australia.[2] Both proceedings were dismissed.
[1] Supreme Court of Western Australia, action number CIV 2197 of 2012 between Mark Simonsen and Christopher Simonsen.
[2] District Court of Western Australia, action CIV 2830 of 2012 between Mark Simonsen and Christopher Simonsen.
The plaintiff's claim faces some difficulties. As I indicated at the hearing of the Application, included in those difficulties is that he seeks the same or similar relief arising out of the same facts and circumstances that were raised and resolved in earlier proceedings.
Having considered the materials filed by the plaintiff in relation to the Application, including his affidavit sworn on 23 January 2024 and the submissions made by him at the hearing of the Application, for the reasons that follow, the plaintiff has not made out his claim for the relief sought, and the Application should be, and is, dismissed.

The relief sought

In the Statement of Claim the plaintiff pleads, in effect, that:
1.The plaintiff and the defendant entered into the Deed, under which the defendant agreed to compromise 'the proceedings' and all other matters in dispute between the parties, and to pay the plaintiff $80,000 in the manner and on the terms set out in the Deed.[3]
2.The defendant has not fulfilled his obligations to pay the plaintiff the agreed amount of $80,000 and has resiled from his obligations arising under the Deed.[4]
3.There are no specific terms of the Deed under which disputes are to be dealt with. In the circumstances, the plaintiff seeks equitable relief 'on fairness considerations'.[5]
4.The plaintiff seeks declaratory relief for the enforcement and performance of the Deed, and other orders the court deems appropriate.[6]
[3] Statement of Claim [1].
[4] Statement of Claim [2].
[5] Statement of Claim [3].
[6] Statement of Claim [4].
The Statement of Claim includes legal propositions and authority relied upon by the plaintiff in support of his contention to the effect that a concluded agreement may be reached where only one party to it has signed the agreement.[7]
[7] Statement of Claim [5] - [22].
The materials filed by the plaintiff are not in the usual form. He did not file an affidavit in support of the originating summons at the time it was filed on 2 January 2024. He filed an affidavit on 23 January 2024 in which he deposes, in summary, to:
(a)the circumstances in which the Deed was entered into;
(b)the steps he has taken to enforce the Deed;
(c)reasons for the delay in bringing his claim;
(d)why he considers the time for bringing his claim should be extended; and
(e)why he should be able to bring his claim and obtain the relief sought in the Application despite the time that has elapsed.
Much of what is stated in the plaintiff's affidavit is in the form of submissions as opposed to evidence. The plaintiff is a litigant in person. As such, it is appropriate that I approach the documents in which he articulates his case with some flexibility.[8] He is also entitled to some leniency in relation to compliance with the court rules.[9] However, the court may only grant relief if the party claiming it establishes they are entitled to the relief sought and that it is appropriate, in the circumstances of the case, to grant it.
[8] Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, 536 ‑ 537 (Kirby P), (543) (Hope & Samuels JJA agreeing); Smart v Prisoner Review Board (WA) [2012] WASC 48 [10] (Pritchard J).
[9] Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10].
At the hearing of the Application, I clarified the relief sought. The plaintiff explained that he was seeking declarations from the court that:
(a)the Deed between him and the defendant is enforceable;
(b)the defendant has breached the terms of the Deed; and
(c)the plaintiff is entitled to recover the settlement sum of $80,000 from the defendant.
If he is successful in obtaining declarations to that effect, the plaintiff intends to issue enforcement action to recover the settlement sum of $80,000 together with interest from the defendant.

The Deed

The copy of the Deed attached to the Statement of Claim is stated to be between 'Mark Jeffrey Simonsen ("the Plaintiff")' and 'Christopher Glenn Simonsen ("the Defendant")' and to have been made on 4 May 2006. It appears to have been prepared by WL & KJ Everett Barristers and Solicitors of Subiaco, acting on behalf of the defendant in 'the proceedings' referred to in the Deed.
The recitals to the Deed state:
WHEREAS:
A.The Defendant is the executor of the estate of the late Glenn Jeffrey Simonsen (Glenn), the Defendant's father, probate having been granted to him on 17 June 2005, and is the sole beneficiary of the said estate.
B.The major asset of Glenn's estate was a property transferred to him by his late mother Mary Ann Joyce Gibson (Mary) in or about 2000, being a property situated at 5 Coffey Road, Belmont in the said State, being more particularly described as the whole of the land comprised in Certificate of Title Volume 260 Folio 100A (the Property).
C.A grant of probate in respect of the will of Mary has not been made, the institute executor the Public Trustee having renounced the same.
D.On 25 November 2005 the Plaintiff commenced proceedings ("the Proceedings") against the Defendant by Writ of Summons numbered 2380 of 2005 issued in the Supreme Court of Western Australia seeking probate and administration of the estate of Mary in solemn form.
E.The Plaintiff on 24 March 2006 also verbally evidenced an intention to contest the validity of various wills made by Mary over a period of about a decade, on the grounds of mental incapacity.
F.In documents filed in the Proceedings, the Plaintiff also evidenced an intention to set aside a transfer of land dated 22 August 2000 between Mary and Glenn.
G.On 24 March 2006 the Plaintiff also verbally evidenced an intention to commence proceedings pursuant to the Inheritance (Family and Dependant's Provision) Act 1972, for provision for himself from Mary's estate.
H.The parties agree to compromise the Proceedings and all matters in dispute between them upon the following terms and conditions.
As observed by Campbell JA in Franklins Pty Ltd v Metcash Trading Ltd,[10] the recitals to a deed or agreement are introductory. They generally include statements of the factual background to the transaction the subject of the agreement.[11]
[10] Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407; (2009) 76 NSWLR 603 (Franklins v Metcash).
[11] Franklins v Metcash [379] (Campbell JA).
In Franklins v Metcash, Campbell JA examined, by reference to the authorities, the manner in which recitals in an agreement or deed may be used in connection with the construction of the agreement or deed.[12] In summary, recitals may be used as an aid to construction of the operative terms of the relevant instrument, but do not form part of the agreement between the parties.[13]
[12] Franklins v Metcash [379] - [390].
[13] Franklins v Metcash [380], [389] - [390]. See also Wright v Lemon [2024] WASCA 19 [536] - [538], citing Franklins v Metcash [379] - [390], Schwartz v Hadid [2013] NSWCA 89 [80] - [81], Lachlan v HP Mercantile Pty Ltd[2015] NSWCA 130; (2015) 89 NSWLR 198 [52] - [53] (Bathurst CJ, Beazley P and McColl JA).
It may be inferred from the factual background set out in the recitals to the Deed that the Deed relates to a compromise of proceedings commenced by the plaintiff against the defendant in this court by writ of summons on 25 November 2005, in action number CIV 2380 of 2005 (2005 Supreme Court Proceedings),[14] seeking probate and administration of the estate of the plaintiff's late mother, Mary Ann Joyce Gibson (Mary).
[14] The proceedings between the plaintiff and the defendant in Supreme Court action number CIV 2350 of 2005 are defined in the Deed as ‘the Proceedings’. I refer to them in these reasons as the 2005 Supreme Court Proceedings so as to distinguish them from other proceedings between the parties that I refer to.
The recitals also refer to a number of other disputes between the plaintiff and the defendant, including:
(a)the plaintiff contesting the validity of various wills made by Mary;
(b)setting aside a transfer of land of 5 Coffey Road in Belmont (Property) from Mary to the defendant's late father, Glenn Simonsen (Glenn); and
(c)an intimated claim by the plaintiff for provision from Mary's estate under the Inheritance (Family and Dependant's Provision) Act 1972.
The recitals state that the plaintiff and the defendant agree to compromise the 2005 Supreme Court Proceedings and all matters in dispute between them on the terms and conditions set out in the Deed.
The Deed contains two execution clauses, one stating 'Signed Sealed and Delivered' by the plaintiff and one stating 'Signed Sealed and Delivered' by the defendant. The copy of the Deed attached to the Statement of Claim is only signed by the plaintiff. There is no signature where provided, or at all, for the defendant.
In setting out the provisions of the Deed and what is stated in it to have been agreed between the parties, as I have noted, the Deed has only been signed by the plaintiff and not by the defendant. Accordingly, my reference to what is stated to have been agreed should not be taken as findings of fact that there was agreement between the parties about the matters stated.
Clause 1 of the Deed provides that a reference to a person in the Deed includes that person's personal representatives and includes those persons acting in their capacity as executor of any estate.
Clause 2 of the Deed provides that, in consideration of the defendant agreeing to compromise 'the Proceedings' and all other matters in dispute between the parties, the defendant shall pay to the plaintiff the sum of eighty thousand dollars ($80,000) (Settlement Sum), as set out in the Deed.
Clause 3 provides that the defendant shall use his best endeavours to apply for a loan to finance payment of the Settlement Sum.
Clause 4 provides that the defendant shall notify the plaintiff in writing, on or before 30 June 2006, that either:
(a)finance has been approved; or
(b)finance has not been approved.
Clause 5 of the Deed provides that:
(a)if finance is approved, payment of the Settlement Sum shall be made to the plaintiff on or before 24 September 2006; or
(b)if finance is not approved, the defendant shall list the Property for sale and, on the date settlement of the Property occurs (Date of Settlement), the defendant shall pay to the plaintiff the Settlement Sum.
Clause 6 of the Deed provides that upon receipt of payment of the Settlement Sum, the plaintiff shall simultaneously provide to the defendant or his solicitors:
(a)an executed Minute of Consent Orders in the form annexed to the Deed (Minute) for the purpose of filing the same at the Supreme Court of Western Australia; and
(b)properly executed and registerable withdrawals of caveat in respect of all caveats registered by the plaintiff over the Property.
Clause 7 of the Deed provides that payment of the Settlement Sum is in full and final settlement of the Proceedings and all other matters in dispute between the parties, and the Deed shall be pleaded as bar to any future actions commenced by the plaintiff in respect of the estates of Mary and Glenn. It further provides that upon receipt of payment of the Settlement Sum, the plaintiff shall have no further interest in the Property, and in the said estates.
Clause 8 of the Deed provides that the plaintiff and the defendant shall bear their own legal costs in relation to the preparation and execution of the Deed and duplicate copy. It also states that the defendant shall pay two thirds of any stamp duty assessed on the Deed and duplicate copy and the remaining one third shall be paid by the plaintiff, with each to pay their respective proportions of stamp duty within one month of issue of any assessment.
Clause 9 of the Deed provides that the parties will do all acts and sign all documents necessary to give effect to the terms of the Deed, including doing all things necessary to obtain orders from the court in terms of the Minute including, if necessary, to provide to the court such further information as it may require or may otherwise be considered necessary for the purpose of obtaining orders in terms of the Minute.
The Minute referred to in the Deed was not included in the copy of the Deed initially filed with the court in this proceeding.[15] A copy of the Minute was filed on 20 February 2024. The plaintiff tendered a copy of the Deed and attached Minute at the hearing of the Application.[16] The copy of the Minute provides for the plaintiff to discontinue the action with no order as to costs. It is unsigned.
[15] As an attachment to the Statement of Claim.
[16] Exhibit 1.

Resolution and discontinuance of the 2005 Supreme Court Proceedings

A minute of consent orders substantially in the form of the Minute but dated 20 April 2007 and signed by the plaintiff and on behalf of the defendant is contained on the court's file relating to the 2005 Supreme Court Proceedings.
Orders substantially in the terms of the Minute are recorded as having been made in the 2005 Supreme Court Proceedings on 27 April 2007, and orders were extracted on 21 June 2007 that the plaintiff have leave to discontinue the action, that the action be and is discontinued and that there be no order as to costs.[17]
[17] My review of the court file in relation to the 2005 Supreme Court Proceedings is limited to the minute of consent orders filed and the orders made disposing of those proceedings.

The plaintiff's affidavit sworn on 23 January 2024

In his affidavit sworn on 23 January 2024, the plaintiff states, in effect, that he seeks an extension of time to bring the Application under the provisions of Part 3 of the Limitation Act 2005 (WA).
He deposes that he is a military veteran and receives a Department of Veteran Affairs disability pension for a number of health issues he suffers, which he outlines in general terms in his affidavit.[18] It is not necessary that I repeat them in these reasons. There is no independent evidence before the court in relation to the plaintiff's physical or mental health at any time.
[18] Affidavit of Mark Simonsen sworn on 23 January 2024 (Simonsen Affidavit) [2].
The plaintiff states that he has been self-represented and has had limited legal assistance and advice in preparing documentation. He says he has received assistance from an acquaintance who is a retired lawyer and also from legal resource centres.[19]
[19] Simonsen Affidavit [3].
The plaintiff refers in his affidavit to 'the original case in this matter regarding the Deed of Settlement being CIV 2380/2015 in the Supreme Court'. It appears that the reference to 2015 is a typographical error and should instead refer to 2005 (the 2005 Supreme Court Proceedings).
The plaintiff refers to the defendant's lawyer having provided the plaintiff with a letter of finance approval dated 28 June 2006 in accordance with cl 3 of the Deed.[20] However, a copy of the letter referred to is not attached to his affidavit and is not in evidence before the court.
[20] Simonsen Affidavit [4].

The plaintiff deposes that, after much delay in complying with the terms of the Deed, he realised that the defendant had resiled from his obligations under it and, on 16 July 2012, he commenced proceedings in the Supreme Court of Western Australia, action CIV 2197 of 2012[21] (2012 Supreme Court Proceedings).
[21] Simonsen Affidavit [5].
He attaches to his affidavit a copy of a transcript of a hearing before Master Sanderson on 4 September 2012 in the 2012 Supreme Court Proceedings.[22] In the transcript, the Master stated that those proceedings effectively sought to give effect to a settlement agreement between the parties. The Master said that it seemed to him inappropriate for the matter to proceed in this court and that the plaintiff needed to issue proceedings in the Magistrates Court for the amount of $80,000. The Master stated that the action under the Inheritance Act had been settled so there was no jurisdiction under that Act to make any order, including an order for payment of $80,000.
[22] Simonsen Affidavit [5], attachment 'A'.
The Master concluded that, in his view, the best course of action for the plaintiff to follow was to issue proceedings in the Magistrates Court and to serve those proceedings upon the defendant. The Master dismissed the plaintiff's application in the 2012 Supreme Court Proceedings and said there was no occasion for making an order for costs.
The plaintiff deposes that upon approaching the Magistrates Court to commence proceedings he was advised that the amount of the claim was outside of the jurisdictional limit of the Magistrates Court of $75,000 and he was referred to the District Court.[23]
[23] Simonsen Affidavit [7].
He states that he commenced proceedings in the District Court (action CIV 2830 of 2012) (2012 District Court Proceedings) by writ of summons on 18 September 2012, attaching a copy of the Deed of Settlement and a copy of the transcript of the proceedings before Master Sanderson on 4 September 2012.
A copy of the Writ issued in the 2012 District Court Proceedings is attached to the plaintiff's affidavit.[24] It is generally indorsed, claiming payment of $80,000 together with interest, stated to be money due and owing by the defendant to the plaintiff pursuant to a Deed of Settlement dated in or around May 2006. A copy of the Deed of Settlement is annexed to the writ.
[24] Simonsen Affidavit [8], attachment 'B'.
The copy of the Deed of Settlement annexed to the writ in the 2012 District Court Proceedings appears to be the same as the Deed attached to the Application. It is also signed only by the plaintiff and not signed by or on behalf of the defendant.
The plaintiff deposes that, on 9 January 2018, he and the defendant agreed by consent to discontinue the 2012 District Court Proceedings to avoid further costs and to resolve their differences in respect of the Deed. He deposes that he accepted this was the way forward and says he was also concerned about the costs of ongoing proceedings due to his limited financial means.[25]
[25] Simonsen Affidavit [9].
A copy of the consent orders signed by the plaintiff, and on behalf of the defendant, in the 2012 District Court Proceedings were filed by the plaintiff in this proceeding. Orders were made by the District Court on 9 June 2018 that:
1.The proceedings be dismissed without judgment entered and without further orders.
2.All extant costs orders (if any) be set aside.
3.There be no order as to costs.
The plaintiff states, in his affidavit, that his matter has been on foot for some time now and is a 'Live' matter.[26] When I asked him to explain what he means by a 'Live' matter, he explained that his understanding of the 12 year (limitation) period that applies to a deed is where 12 clear years have passed where there has been no proceedings. He submitted this has been a live matter since the Deed was entered into because he has had proceedings on foot and has been trying to enforce the Deed since then.[27]
[26] Simonsen Affidavit [12].
[27] Simonsen Affidavit [12], [15], [16].
The plaintiff submits that he should not be prevented from these proceedings moving forward simply because there have been difficulties for him as a self-represented person and with the costs of proceeding due to his limited financial means. He also refers to mental health issues, though does not provide any evidence of mental health issues suffered by him,[28] when he suffered any such issues and the effect of such.
[28] Other than general references to suffering anxiety and depression, Simonsen Affidavit [2], and being a disability pension veteran with post‑traumatic stress disorder (PTSD), Simonsen Affidavit [15(c)].
The plaintiff submits that Part 3 of the Limitation Act allows the court to extend the limitation period in situations such as fraud, mistake, disability or acknowledgment of debt. In this regard, he did not identify any particular sections of the Limitation Act, and sought to rely upon the alleged 'illegal transfer' of his late mother Mary's Property to his late brother, Glenn, as a reason why the limitation period may be extended because of a fraud. He also referred to the defendant having acknowledged the debt owed by the Deed.[29]
[29] Simonsen Affidavit [15].
The plaintiff also submits that he is a person under a disability because he is self‑represented and, as a disability pension veteran with post‑traumatic stress disorder (PTSD), is at a disability dealing with the court and progressing his claim.

Declaratory relief

The Court has a discretionary power to grant declaratory relief under s 25(6) of the Supreme Court Act 1935 (WA) and O 18 r 16 of the Rules of the Supreme Court 1971 (WA) (RSC). The principles that apply to the exercise of the court's discretion to grant declaratory relief are well established and it is not necessary that I repeat them in detail.
Before exercising a discretion in favour of making a declaration, the court must be satisfied that the question is a real and not a theoretical question; the person raising it must have a real interest to raise it; they must be able to secure a proper contradictor, which is to say, someone presently existing who has a true interest to oppose the declaration sought.[30]
[30] Australian Competition and Consumer Commission v MSY Technology Pty Ltd (2012) 201 FCR 378, [12] ‑ [13] citing Gibbs J in Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 437 - 438.
In this case, the defendant has been served with the Application Documents, is on notice of the declaratory relief sought but has not entered an appearance or sought to contradict or oppose the declaratory relief sought. That does not, by itself, operate to exclude the granting of declaratory relief.[31] However, for the reasons that follow, the plaintiff has not made out his case for the declaratory relief sought, in any event.
[31] See Hart v Milne [2024] WASC 229 [49] - [51].

Determination

The plaintiff's application for an extension of time in relation to this proceeding

For the reasons that follow, there is no basis upon which an application to extend the limitation period may be made in the circumstances of this case.
Also, any question as to whether an action is statute barred because the relevant limitation period has expired, is ordinarily a matter to be raised by the defendant to an action as a defence or bar to relief being granted in relation to the claim or claims made. In this case, the defendant has not entered an appearance and no such defence has been raised.
For completeness, I address the matters raised by the plaintiff's application for an extension of time in relation to his claim for relief in this proceeding.
Limitation Acts generally provide that an action may not be brought after the expiry of a stated period of time from the date on which the plaintiff's cause of action accrued. In simple terms, a cause of action accrues when all the facts have occurred which give rise to a right to sue,[32] or entitle a person to obtain a remedy from a court against another person.[33]
[32] Do Carmo v Ford Excavations Pty Ltd [1984] HCA 17; (1984) 154 CLR 234, 245 (Wilson J).
[33] Letang v Cooper [1964] 3 WLR 573; [1964] 2 All ER 929 (CA); [1965] 1 QB 232, 242 - 243 (Diplock LJ).
The effect of a limitation period having run is to bar the remedy rather than the right. As noted, it is generally a matter to be raised in defence of a claim for relief.

To the extent any cause of action arises that is founded on a deed, which accrued after 15 November 2005, s 18 of the Limitation Act 2005 provides that such an action cannot be commenced if 12 years have elapsed since the cause of action accrued.
The cause of action for breach of an obligation under a deed accrues at the time of breach in the same way as for a simple contract[34] - an agreement not executed as a deed. In claims for breach of contract, the cause of action accrues at the time of the breach of contract, as opposed to when any loss or damage is suffered.[35]
[34] Barker v Duke Group Ltd (in liq) [2005] SASC 81, [168] (White J) citing The Millstream Pty Ltd v Schultz [1980] 1 NSWLR 547; Sheldon v McBeath (1993) Aust Tort Reports 81 - 209 at 62, 076 (Handley JA); Amott v Holden (1852) 18 QB 593; 118 ER 224; Spoor v Green (1874) LR 9 Ex 99; Turner v Moon [1901] 2 Ch 825.
[35] Dewar v Ollier [2018] WASC 212 [290] - [292] (affirmed on appeal in Dewar v Ollier [2020] WASCA 25); Hawkins v Clayton (1988) 164 CLR 539, 583.

As stated in the following section of these reasons, the Deed which the plaintiff seeks to enforce is not executed as a deed. It has not been executed by the defendant at all. As such, s 18 of the Limitation Act does not apply. The cause of action arising from a breach of any agreement found to have been made between the plaintiff and the defendant will be for breach of contract.
The time for bringing a claim in relation to any breach of contract is six years from the date of the breach.[36] It is not immediately apparent on the material before the court when the alleged breach is said to have occurred.
[36] Limitation Act, s 13; Dewar v Ollier [2018] WASC 212 [290] - [292] (upheld on appeal in Dewar v Ollier [2020] WASCA 25); Hawkins v Clayton (1988) 164 CLR 539, 583.
The plaintiff deposes to the defendant's lawyer having provided him with a letter of finance approval dated 28 June 2006 in accordance with cl 3 of the Deed.[37] However, a copy of the letter referred to is not attached to his affidavit and is not in evidence before the court.
[37] Simonsen Affidavit [4].
Clause 5 of the Deed provides that, if finance is approved, payment of the Settlement Sum shall be made to the plaintiff on or before 24 September 2006. The plaintiff alleges that he has not received payment of the Settlement Sum from the defendant. If breach occurred by failure to make payment by 24 September 2006, six years from then lapsed in September 2012. Even, if the relevant limitation period were 12 years, such would have lapsed in September 2018.
Clause 6 of the Deed provides that upon receipt of payment of the Settlement Sum, the plaintiff shall simultaneously provide to the defendant or his solicitors an executed Minute for the purpose of filing the same at the Supreme Court of Western Australia. The copy of the Minute produced by the plaintiff is unsigned. It is unclear in what circumstances the Minute was filed in the 2005 Supreme Court Proceedings, if not upon receipt of the Settlement Sum by the plaintiff. There is no evidence or information about that before the court. However, as noted:
(a)a minute of consent orders substantially in the form of the Minute but dated 20 April 2007 and signed by the plaintiff and on behalf of the defendant was filed in the 2005 Supreme Court Proceedings;
(b)orders substantially in the terms of the Minute are recorded as having been made in the 2005 Supreme Court Proceedings on 27 April 2007; and
(c)orders were extracted on 21 June 2007 that the plaintiff have leave to discontinue the action, that the action be and is discontinued and that there be no order as to costs.
The provisions in Division 3 of Part 3 of the Limitation Act under which an application may be made to the court to extend a limitation period do not apply in the circumstances of this case.
There is no evidence before the court that any failure to commence the action was attributable to fraudulent or improper conduct on the part of the defendant or a person for whom he is vicariously liable, as provided in s 38 of the Limitation Act. Although, the plaintiff asserts fraud,[38] there is no evidence to support this.
[38] Simonsen Affidavit [15(a)].
The action is not one claiming damages for personal injury or under the Fatal Accidents Act 1959, to which s 39 applies. Nor is it a defamation action, to which s 40 applies, nor one brought by a person who was under 18 years at the time the cause of action accrued, to which s 41 applies.
Section 42 of the Limitation Act provides that the court may, in certain circumstances, extend time to commence an action by a person who suffers a mental disability at any time after a cause of action accrues to that person for a period of up to 12 years from when the cause of action accrued. However, there is no evidence upon which I can be satisfied that the plaintiff suffers or was suffering a mental disability and no suggestion to support that he has or has had a guardian. In any event, more than 12 years have elapsed since any cause of action accrued.
In so far as the plaintiff seeks equitable declaratory relief, the same difficulty arises. As the Court of Appeal stated in Halford v Halford:[39]
In general terms, under the Limitation Act 2005, the effect of s 13, read with the definition of 'action' in s 3(1), is that, subject to div 3, a claim in equity cannot be commenced if six years have elapsed from the date the cause of action accrues. Division 3 includes s 27, which applies to 'equitable actions'. In general terms, s 27(2) defines 'equitable action' as an action where relief is sought in equity and for which, had no limitation period been so provided, equity would not otherwise have applied a limitation period by analogy. In such cases, the 'equitable action' must be commenced within six years 'since the cause of action accrued or, if later, three years since time started running, on equitable principles, before commencing the action'. ...
[39] Halford v Halford [2022] WASCA 1 [164].
The declaratory relief sought relates to the enforceability or performance of the Deed or any breach of agreement found to arise under it. There is no separate equitable claim. As such, the same limitation period applies as would apply to a claim in contract.
Ultimately, whether the plaintiff's claim is said to arise under the Deed, for breach of contract or otherwise, the limitation period expired long ago. There is no basis upon which the court may, on application, extend the limitation period in the circumstances of the case, and on the information and evidence before the court.
No limitation defence has been raised to the plaintiff's claim, which has not been contested. However, the plaintiff has not made out his claim that he is entitled to enforce the Deed or that the defendant is liable to pay him the Settlement Sum.

No evidence of concluded agreement or breach of any agreement

I am not satisfied on the evidence before me that there is an enforceable agreement between the plaintiff and the defendant, whether by the Deed or otherwise.
For a deed to be validly executed under s 9(1) of the Property Law Act 1969 (WA), whether or not the deed is one affecting property, it:
(a)shall be signed by the party to be bound thereby; and
(b)shall be attested by at least one witness not being a party to the deed but no particular form of words is required for the attestation.
The requirements of s 9(1) are an essential precondition for a document to amount to a deed; non‑compliance with those requirements means that the document does not constitute a deed.[40]
[40] Dewar v Ollier [2020] WASCA 25 [137], citing Bombardier Inc v AVWest Aircraft Pty Ltd [2020] WASCA 2 [84], which in turn cites Netglory Pty Ltd v Caratti [2013] WASC 364.
The Deed is signed only by the plaintiff. There is no signature or anything to indicate the Deed has been signed by the defendant. Consequently, he cannot be bound by it as a deed.[41] Nor is there any evidence to indicate an intention on the defendant's part to be legally bound by the alleged agreement.
[41] Property Law Act, s 9(1)(a).
As referred to in some of the authorities included in the Statement of Claim, there may be cases where an agreement is evidenced by the conduct of the parties or from other communications between them or their lawyers, which evidence an intention to be bound by an agreement even though it has not been signed. However, there is no evidence of any such conduct or any other evidence before the court from which I can make an objective assessment and conclude that the defendant intended to be bound by the agreement set out in the Deed.
I cannot be satisfied on the evidence before me of any such intention on the defendant's part. Nor am I satisfied there is any basis upon which I may conclude that the defendant is in breach of an obligation to pay the Settlement Sum of $80,000 to the plaintiff.
There is no evidence to support any concluded agreement between the plaintiff and the defendant or of any liability of the defendant to pay the plaintiff the Settlement Sum, or any other amount. The plaintiff has not made out his case and there is no basis to grant the relief sought, or any relief. The plaintiff's claim and the proceeding should be, and is dismissed.

Abuse of process - claim made and disposed of in earlier proceedings

The plaintiff faces a further difficulty in this proceeding in that he is seeking to litigate a matter that has already been the subject of earlier proceedings, which have been disposed of.
As outlined, the plaintiff has previously issued proceedings concerning the enforcement of the alleged agreement between him and the defendant and recovery of the $80,000 he claims is payable to him by the defendant as the Settlement Sum under the terms of the Deed. The Application is the plaintiff's third attempt to seek relief in respect of and prosecute what is, in effect, the same claim.
As stated earlier in these reasons, the Deed or agreement the plaintiff seeks to enforce relates to a compromise of the 2005 Supreme Court Proceedings, which were discontinued by consent in 2007. The plaintiff first brought proceedings to enforce the Deed in the 2012 Supreme Court Proceedings. Those proceedings were dismissed on 4 September 2012.
The plaintiff then issued the 2012 District Court Proceedings on 18 September 2012. He deposes that he and the defendant agreed to the 2012 District Court Proceedings being discontinued to resolve their differences in relation to the Deed and to avoid further legal costs.
The 2012 District Court Proceedings were dismissed by the consent of the plaintiff and the defendant on 9 June 2018. Yet, some five and a half years later, the plaintiff seeks to reagitate his settled claim in relation to the Deed by bringing this Application.
Although Christopher has not entered an appearance and sought to challenge the further proceeding, the court should not allow claims or proceedings which are an abuse of the court's process.
Also relevant are the principles of case management and the overriding objective contained within O1 rr 4A and 4B RSC as to the efficient use of the court's resources,[42] and the need to maintain public confidence in the judicial system and the court's processes.
[42] See Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175.
It is well established that superior courts have inherent jurisdiction to permanently stay proceedings which are an abuse of process.[43] The power arises from the need for the court to be able to exercise the jurisdiction which it has to dispose of the proceedings effectively.[44] The power exists to enable the court to protect itself from abuse of its process and prevent use of the court's process and procedures in a manner that brings the administration of justice into disrepute.[45] That purpose may transcend the interest of any particular party to the litigation.[46] There is no requirement that the continuance of the action would involve moral delinquency on the part of the plaintiff.[47]
[43] Mariotti v Wanneroo North Pty Ltd [2008] WASCA 243 (Mariotti) [57] (Steytler P) (Buss JA and Beech AJA agreeing) [75], [76], citing Williams v Spautz (1992) 174 CLR 509, 518 (Mason CJ, Dawson, Toohey & McHugh JJ) and the cases there cited; Christmas Island Resort Pty Ltd v Geraldton Building Co Pty Ltd (No 5) (1997) 18 WAR 334, 344 -345 (Christmas Island Resort); Batistatos v Roads and Traffic Authority of New South Wales[2006] HCA 27; (2006) 226 CLR 256 (Batistatos).
[44] Mariotti [57], citing Williams, 518 [fn 22]; Connelly v Director of Public Prosecutions[1964] AC 1254, 1301; Christmas Island Resort, 344 ‑ 345.
[45] Mariotti [57], citing Metropolitan Bank Ltd v Pooley(1885) 10 App Cas 210; Batistatos [12]. See also UBS AG v Tyne as Trustee of the Argot Trust [2018] HCA 45; (2018) 265 CLR 77, 83 (UBS AG) [1], citing Hunter v Chief Constable of West Midlands Police [1982] AC 529, 536 (Lord Diplock); Walton v Gardiner (1993) 177 CLR 378, 393 (Mason CJ), Deane and Dawson JJ); Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507, 519 [25] (French CJ, Bell, Gageler and Keane JJ). See also Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4; (2015) 48 WAR 93 [4] ‑ [11] (Buss JA) (Sheraz).
[46] Mariotti [57], citing Batistatos[12].
[47] Mariotti [57], citing Batistatos[70], and also [141], [142] (Kirby J)).

Buss JA (as his Honour then was) considered the power of the court to prevent its procedures being abused in Sheraz Pty Ltd v Vegas Enterprises Pty Ltd.[48] As noted in Sheraz,[49] what constitutes an abuse of process is incapable of being described exhaustively. However, as Buss JA observed, at least one of three characteristics will be apparent in many cases of abuse of process:[50]
(a)a court's processes being invoked for an illegitimate or collateral purpose;
(b)the use of a court's procedures being unjustifiably oppressive to a party; or
(c)the use of a court's procedures bringing the administration of justice into disrepute.
[48] Sheraz [4]-[20]
[49] Sheraz [5].
[50] Sheraz [6], citing Rogersv R [1994] HCA 42; (1994) 181 CLR 251, 286 (McHugh J); Batistatos [15]; PNJ v R[2009] HCA 6; (2009) 83 ALJR 384 [3] (French CJ, Gummow, Hayne, Crennan & Kiefel JJ); Moti v R[2011] HCA 50; (2011) 86 ALJR 117l [10] (French CJ, Gummow, Hayne, Crennan, Kiefel & Bell JJ).
Included in the categories of cases amounting to an abuse of process is where a litigant brings a proceeding that seeks to litigate or re-litigate an issue which arises out of substantially the same facts and circumstances as a claim or claims made in earlier proceedings, and which have been determined or otherwise resolved between the parties.
In UBS AG v Tyne as Trustee of the Argot Trust,[51] Kiefel CJ, Bell and Keane JJ stated, in effect, that the undue vexation which a stay of proceedings is concerned to prevent is not limited to when earlier proceedings in respect of the same issue have been concluded by a judgment on the merits. Their honours stated that serial proceedings discontinued prior to judgment would be an obvious example of an abuse of process.[52] Of course, each case must be considered on its own facts and circumstances.
[51] UBS AG v Tyne as Trustee of the Argot Trust [2018] HCA 45; (2018) 265 CLR 77.
[52] UBS AG, 96 - 97 [46] (Kiefel CJ, Bell and Keane JJ).
In dissent, Nettle and Edelman JJ held, on the facts in UBS AG, where proceedings had been discontinued under the relevant court rules, that the further proceeding the subject of the appeal was not an abuse of process because it was not unjustifiably oppressive to UBS and did not bring the administration of justice into disrepute.[53]
[53] UBS AG [84] - [92] (Nettle and Edelman JJ). Relevantly in UBS AG, the court rules expressly provided that discontinuing proceedings did not prevent a plaintiff from claiming the same relief in fresh proceedings, and UBS did not object to the discontinuance of the earlier proceedings or seek any condition on the grant of leave to discontinue.
In this case, the 2012 District Court Proceedings were not discontinued under O 23 r 2 RSC.[54] They were dismissed by the consent of the parties.
[54] Which apply to District Court proceedings by operation of r 6 of the District Court Rules 2005 (WA).
Gageler J, who joined in the majority decision in UBS AG and added reasons of his own, considered Lord Bingham's analysis in Johnson v Gore Wood & Co,[55] among other matters, and stated:[56]
In the context of the application of the doctrine to the bringing of successive proceedings, consistently with the analysis of Lord Bingham, I think it better in weighing the private and public interests involved to eschew the extremes of private “oppression” and of public “disrepute”. The relevant public interest is ordinarily appropriately identified in more general and less emotive terms as the timely and efficient administration of civil justice.
[55] Johnson v Gore Wood & Co [2002] 2 AC 1, 31 (Lord Bingham).
[56] UBS AG [72].
There is an underlying public interest, which is reinforced by the emphasis on efficiency and economy in the conduct of litigation in the interests of not just the parties, but the public as a whole, that there be finality in litigation and that 'a party should not be twice vexed in the same matter'.[57] The significant delay in the resolution of the dispute also informed the majority's determination in UBS AG.[58]
[57] UBS AG [66] (Gageler J), referring to Johnson v Gore Wood & Co [2002] 2 AC 1, 31 (Lord Bingham).
[58] UBS AG [58] - [59] (Kiefel CJ, Bell and Keane JJ).
This is the third proceeding commenced by the plaintiff seeking the same or substantially the same relief against the defendant in relation to enforcement of the Deed. Although the first of those, the 2012 Supreme Court Proceedings were short lived and dismissed on, or close to, the first return date, the 2012 District Court Proceedings, which were issued 12 years ago, were dismissed by the consent of the parties some six years after the proceedings were commenced.
The claim in this proceeding seeks to relitigate matters the subject of the earlier proceedings and, in particular, those raised in the 2012 District Court Proceedings, which the parties agreed should be, and were, dismissed. Although the plaintiff seeks to advance his claim in this proceeding under a different guise, as a claim for declaratory relief, the relief sought is to the same end. That is to recover the Settlement Sum alleged to be owed to him by the defendant. It is a claim that arises out of the same facts and circumstances as the earlier proceedings and that has been the subject of an agreed resolution, and disposed of.
The plaintiff's use of the court's process and resources in this way is contrary to the efficient and effective administration of justice. It is, in my view, an abuse of the court's process and, had I not dismissed the plaintiff's claim and the proceeding for the reasons stated, I would have ordered that the proceeding be permanently stayed as an abuse of process.

Conclusion and orders

For these reasons, the plaintiff's application and the proceeding are dismissed with no order as to costs and orders will be made in those terms.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AP
Associate to Master Russell
18 NOVEMBER 2024