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Stevens v Wright

Stevens v Wright

Case [2021] WASC 36 17 February 2021

Admissibility of Evidence

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   STEVENS -v- WRIGHT [2021] WASC 36
CORAM:   ACTING MASTER STRK
HEARD:   23 JULY 2020
DELIVERED          :   17 FEBRUARY 2021
PUBLISHED           :   17 FEBRUARY 2021
FILE NO/S:   CIV 1023 of 2020
BETWEEN:   SIMON STEVENS
Plaintiff
AND
RAYMOND THOMAS WRIGHT
Defendant

Catchwords:

Practice and procedure – Application for judgment on admissions – The proper exercise of discretion – Ancillary orders – Application for summary judgment – Ouster and ejectment – Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA)

Result:

Judgment on admission granted
Summary judgment refused

Category: B

Representation:

Counsel:

Plaintiff	:	P MacMillan
Defendant	:	R J Squires

Solicitors:

Plaintiff	:	Corinne Griffin & Co
Defendant	:	Greenstone Legal

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

Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552
Australian Can Co Pty Ltd v Levin & Co Pty Ltd [1947] VLR 332
Bankwest (a Division of Commonwealth Bank of Australia) v Mann [2015] WASC 187
Bastitstatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256
Biviano v Natoli (1998) 43 NSWLR 695
Bombara v Bombara [2010] WASC 314
Callow v Rupchev [2009] NSWCA 148
Cardaci v Filippo Primo Cardaci as Executor of the Estate of Marco Antionio Cardaci, dec [No 4] [2020] WASC 159
Davis v Johnson [1979] AC 264; [1978] 1 All ER 1132
Denis v McDonald [1982] 2 WLR 275
Deputy Commissioner of Taxation v Lafferty [2017] WASC 257
Elanel Pty Ltd v MJK Properties Pty Ltd [2013] WASC 292
Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87
Forgeard v Shanahan (1994) 35 NSWLR 206
GEL Custodians Pty Ltd v Dewar [2014] WASC 177
Giacci v Giacci Holdings Pty Ltd [No 2] [2011] WASC 135
Halford v Halford [No 2] [2018] WASC 303
HSBC Bank Australia Ltd v Mavaddat [2015] WASC 153
In the Matter of the Trade Marks Act 1955-1958 and In the Matter of Registered Trade Marks 'Certina' and 'Certina DS' (1970) 44 ALJR 191
Jacka Nominees Pty Ltd (in liq) v Edwards Karwacki SMI (Unreported, WASC, Library No 920512, 12 October 1992)
Jones v Jones [1977] 2 All ER 231; [1977] 1 WLR 438
Lancaschire Welders Ltd v Harland & Wolff Ltd [1950] 2 All ER 1096
Mavaddat v HSBC Bank Australia Ltd [No 2] [2016] WASCA 94
Moisley v Mahony [1950] VRL 318
Moon v Mun [2013] NSWCA 217
Morgan v Pallister [2004] WASC 188
Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109
Nullagine Investments Pty Ltd v Western Australia Club Inc (1993) 177 CLR 635
Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118
Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14
Wallingford v Mutual Society (1880) 5 App Cas 685
Wright v Wright [2002] WASC 30

ACTING MASTER STRK:

The plaintiff in his capacity as executor of the estate of the late Margaret Helen Wright seeks…

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 Stevens v Wright

Details

AGLC: Stevens v Wright [2021] WASC 36
Case: [2021] WASC 36
Decision Date

CaseChat Overview and Summary

Simon Stevens, as executor of the estate of the late Margaret Helen Wright, sought a judgment on admissions and summary judgment in his claim against Raymond Thomas Wright, Margaret's second husband. The dispute arose from the interpretation and implementation of a Deed of Family Arrangement concerning the sale of a jointly owned property. The plaintiff sought an order for the sale of the property, control of the sale process, payment of an occupational fee, and ejectment of the defendant from the property. The defendant admitted certain facts but denied others, arguing for joint control of the sale process.

The court considered whether the plaintiff was entitled to judgment on the admissions made by the defendant and whether summary judgment could be granted on the claim for ejectment. The court found that the defendant's admissions clearly supported the plaintiff's claim for an order of sale, and ancillary orders to facilitate the sale were appropriate. However, the court found that there remained real uncertainty as to the plaintiff's right to judgment on the claim for ejectment without further investigation of the facts, and thus summary judgment was refused on that claim.

In conclusion, the court granted judgment on admissions in favour of the plaintiff, ordering the sale of the property and ancillary orders to facilitate the sale, while refusing summary judgment on the claim for ejectment. The court directed the parties to prepare a form of order reflecting these reasons and to discuss costs.

Orders