Szulc v Szulc - [2017] WASCA 121

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: SZULC -v- SZULC [2017] WASCA 121

CORAM: MURPHY JA
BEECH JA

HEARD: 22 JUNE 2017

DELIVERED : 30 JUNE 2017

FILE NO/S: CACV 1 of 2017

BETWEEN: MAXWELL JAN SZULC
Appellant
AND
SCOTT ANDREW SZULC
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :MASTER SANDERSON
Citation  :EX TEMPORE DECISION DELIVERED 13 DECEMBER 2016
File No  :CIV 2445 of 2014

Catchwords:

Practice and procedure - Hearing to show cause - Whether any grounds have reasonable prospect of succeeding pursuant to r 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules 2005 (WA) - Whether appeal to be dismissed pursuant to r 43(2)(g)(ii) of the Supreme Court (Court of Appeal) Rules 2005 (WA) - Dispute concerning the purchase of a half share interest in real property by a son from his father

Legislation:

Rules of the Supreme Court 1971 (WA), O 14 r 3
Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)(i), r 43(2)(g)(ii)
Transfer of Land Act 1873 (WA), s 242(1A)

Result:

Respondent's application allowed and appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: In person

Solicitors:

Appellant: In person
Respondent: In person

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

Commonwealth v Albany Port Authority [2006] WASCA 185
DA Christie Pty Ltd v Baker [1996] 2 VR 582
Nominal Defendant v Manning [2000] NSWCA 80; (2000) 50 NSWLR 139
Szulc v Szulc [2015] WASC 451
Szulc v Szulc [No 2] [2016] WASC 381

REASONS OF THE COURT: This matter came before the court on 22 June 2017 by way of a registrar's notice to attend dated 18 May 2017. The purpose of the hearing was to consider the respondent's application to dismiss, or alternatively to strike out, the appeal, and for the appellant to show cause why the appeal should not be dismissed pursuant to r 43(2)(g)(i) or r 43(2)(g)(ii) of the Supreme Court (Court of Appeal) Rules 2005 (WA) (Rules).
The appeal in this matter was commenced by notice filed 5 January 2017 in respect of Master Sanderson's decision on 13 December 2016. By that decision, the master dismissed the appellant's application filed 23 November 2016. By that application, the appellant applied to set aside the 'Default Judgment of Principal Registrar Gething dated 30 January 2016' and for the 'matter to be brought to trial'.
The proceedings in the primary court concerned, in substance, a dispute between Scott Szulc (the respondent) and his father Maxwell Szulc (the appellant) over a contract for the sale by the appellant to the respondent of the appellant's half interest in certain land. At the time of the contract for sale, the appellant was the registered proprietor of a half share as a tenant in common of the land.
The litigation has a lengthy history. It is summarised below.

Background

On 17 October 2014, the respondent commenced proceedings against the appellant seeking, relevantly, specific performance of a…

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 Szulc v Szulc

Details

AGLC: Szulc v Szulc [2017] WASCA 121
Case: [2017] WASCA 121
Decision Date: 30 JUNE 2017

CaseChat Overview and Summary

The applicant, Szulc, sought leave to appeal against a decision of the Supreme Court of Western Australia, which dismissed his claim that he had purchased a half share interest in a property from his father, the respondent. The Supreme Court (Court of Appeal) Rules 2005 (WA) governed the application. The main legal issues before the court were whether there were any grounds that had a reasonable prospect of succeeding and whether the appeal should be dismissed.

The court considered the evidence presented and found that the applicant had failed to demonstrate any grounds that had a reasonable prospect of success. The court held that the applicant's claim was not supported by the evidence and that the trial judge's findings were well-reasoned and supported by the evidence. The court further held that the applicant had not demonstrated that the trial judge had erred in law or made a mistake of fact. The court concluded that there were no grounds that had a reasonable prospect of success and that the appeal should be dismissed.

Accordingly, the court dismissed the application for leave to appeal. The court held that the applicant had not demonstrated any grounds that had a reasonable prospect of success and that the appeal should be dismissed pursuant to r 43(2)(g)(ii) of the Supreme Court (Court of Appeal) Rules 2005 (WA). The court further held that the costs of the application be paid by the applicant.

Orders