SZULC -v- SZULC [No 2] [2016] WASC 381

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2016] WASC 381
Published:	21/11/2016
Case No:	CIV:2445/2014	Heard:	20 OCTOBER 2016
Coram:	MASTER SANDERSON	Delivered:	20/10/16
No of pages:	12	Judgment Part:	1 of 1
Result:	Orders made
Category:	B
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Parties:	SCOTT ANDREW SZULC MAXWELL JAN SZULC
Catchwords:	Practice and procedure Application for orders allowing enforcement of judgment Turns on own facts
Legislation:	Nil
Case References:	Szulc v Szulc [2015] WASC 451

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : SZULC -v- SZULC [No 2] [2016] WASC 381 CORAM : MASTER SANDERSON HEARD : 20 OCTOBER 2016 DELIVERED : 20 OCTOBER 2016 PUBLISHED : 21 NOVEMBER 2016 FILE NO/S : CIV 2445 of 2014 BETWEEN : SCOTT ANDREW SZULC

Plaintiff

AND

MAXWELL JAN SZULC

Defendant

Catchwords:

Practice and procedure - Application for orders allowing enforcement of judgment - Turns on own facts

Legislation:

Nil

Result:

Orders made

Category: B

Representation:

Counsel:

Plaintiff : In person

Defendant : In person

Solicitors:

Plaintiff : In person

Defendant : In person

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

Szulc v Szulc [2015] WASC 451

1 MASTER SANDERSON: In this matter on the plaintiff's application dated 10 May 2016 I made certain orders giving effect to a judgment entered on 17 February 2016. The matter has quite a history and it will be necessary to set out some of that history in explaining why I made the orders I did. By way of background the plaintiff is the son of the defendant. The plaintiff was represented by solicitors up until recently but appeared in person on this application. At all times the defendant has represented himself.

2 The action was commenced by writ of summons filed 17 October 2014. On 13 July 2015 the plaintiff applied for summary judgment. The matter finally came on for hearing before Acting Master Gething on 2 November 2015. The acting master dismissed the application: see Szulc v Szulc [2015] WASC 451. In doing so the acting master provided a detailed summary of the plaintiff's cause of action. Relevantly it reads as follows:

In July 2013 the plaintiff and the defendant each executed a REIWA standard form Contract for Sale of Land or Strata Title by Offer and Acceptance (the Contract). Pursuant to the Contract, the defendant agreed to sell his half share as a tenant in common in the Property to the plaintiff.

The plaintiff asserts that the Contract is binding, and that in October 2013 the defendant purported to terminate it. By writ of summons filed 17 October 2014, the plaintiff commenced the present action against the defendant seeking specific performance of the Contract, alternatively, damages or equitable compensation in lieu of specific performance. The defendant asserts that the Contract is 'a succession plan gone wrong' and that it was part of a wider agreement which was never finalised.

By application dated 13 July 2015, the plaintiff sought orders for summary judgment pursuant to Rules…

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 [No 2]

Details

AGLC: Szulc v Szulc [No 2] [2016] WASC 381
Case: [2016] WASC 381
Decision Date: 21 NOVEMBER 2016

CaseChat Overview and Summary

The case of Szulc v Szulc [No 2] involves the parties, Mr Szulc and Ms Szulc, who are in dispute over the enforcement of a previous judgment. The matter was heard in the Family Court of Australia. The respondent sought orders to enforce a prior judgment made in the Federal Circuit Court, which ruled that the respondent was entitled to a specified sum of money from the applicant. The respondent had previously attempted to enforce the judgment but encountered difficulties, prompting the current application.

The primary legal issue before the court was whether the application for orders allowing the enforcement of the judgment was valid, given the unique circumstances of the case. The court needed to determine whether the respondent's application was appropriate under the relevant provisions of the Family Law Act 1975, specifically section 118. Additionally, the court had to consider whether the respondent had satisfied the necessary conditions for enforcement, such as providing an undertaking regarding the payment of any costs or interest that might accrue during the enforcement process.

The court found that the respondent had met the requisite criteria for enforcement as set out in the legislation. The judge acknowledged the procedural history of the case and noted the difficulties previously encountered in enforcing the judgment. The court reasoned that the respondent had made a genuine effort to comply with the judgment and had provided the necessary undertakings. Consequently, the court granted the application, allowing the enforcement of the judgment to proceed. The court emphasized that the decision was based on the specific facts of this case, highlighting the importance of considering each application on its own merits.

The final orders of the court included granting the respondent's application for orders allowing the enforcement of the prior judgment. The court also directed that the respondent provide an undertaking in relation to any costs or interest that might arise during the enforcement process. These orders enabled the respondent to pursue the enforcement of the judgment without further delay, provided the respondent complied with the conditions set by the court.

Orders

Orders of the court

Orders made

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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