Thomas v Cummins - [2009] WASC 228

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: THOMAS -v- CUMMINS [2009] WASC 228

CORAM: BEECH J

HEARD: 11 AUGUST 2009

DELIVERED : 11 AUGUST 2009

PUBLISHED : 19 AUGUST 2009

FILE NO/S: CIV 2670 of 2008

BETWEEN: RHYS HENRY THOMAS
Plaintiff
AND
MARY ELIZABETH CUMMINS
Respondent

Catchwords:

Practice and procedure - Tomlin order - Application for orders to enforce Tomlin order - Whether appropriate to grant application on a summary basis - Turns on own facts

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff: Mr T M Clavey
Respondent: Ms K F Banks-Smith

Solicitors:

Plaintiff: Clavey Legal
Respondent: Blake Dawson

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

Commissioner of State Taxation v Extos Pty Ltd [2000] WASCA 293
Dalmation Nominees Pty Ltd v Marinovich (Unreported, WASC, Library No 980670, 20 November 1998)
E F Phillips & Sons Ltd v Clarke [1970] 1 Ch 322
Extos Pty Ltd v Commissioner of State Taxation [1999] WASCA 270
General Credits (Finance) Pty Ltd v Fenton Lake Pty Ltd [1985] 2 Qd R 6
Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61; (2007) 233 CLR 115
Programme Holdings Pty Ltd v Van Gogh Holdings Pty Ltd [2009] WASC 79
Roberts v Gippsland Agricultural & Earth Moving Contracting Co Pty Ltd [1956] VLR 555
Secure Parking (WA) Pty Ltd v Wilson [2008] WASCA 268
Wilson & Whitworth Ltd v Express & Independent Newspapers Ltd [1969] 1 All ER 294

BEECH J:
(This is an edited version of the reasons delivered extemporaneously on 11 August 2009.)

By letter dated 21 July 2009 the plaintiff, Mr Rhys Thomas, applies to summarily enforce the terms of a compromise agreement recorded in the schedule to the Tomlin order I made on 22 December 2008. For the reasons that follow, I am not persuaded that it is appropriate to grant, on a summary application, the relief sought by Mr Thomas.
I begin with some brief observations about the background to the making of the Tomlin order.

Background to the Tomlin order

Mr Thomas commenced proceedings in December 2008 against the defendant, Ms Mary Cummins. Mr Thomas claimed to be the owner of, or to have an interest in, an aircraft VH-NRP (the Aircraft). On 4 December 2008 I granted Mr Thomas an ex parte injunction until 12 December 2008 restraining Ms Cummins from selling the Aircraft or removing the Aircraft from Australia. On 12 December 2008, Ms Cummins gave an undertaking in corresponding terms until 22 December 2008.
The parties each filed evidence in relation to the injunction application made by Mr Thomas. The evidence established that the Aircraft was registered in the name of Ms Cummins, or an entity associated with her, and that she or the associated entity had purchased the Aircraft from its previous owner. Consequently Ms Cummins was the legal owner of the Aircraft. A central piece of evidence in Mr Thomas' case was the letter of 9 January 2008 from Ms Cummins to him. By that…

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.

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Details

Case: [2009] WASC 228
Decision Date: 11 AUGUST 2009

CaseChat Overview and Summary

In the case of Thomas v Cummins, the matter before the court involved an application for orders to enforce a Tomlin order. The dispute arose between the plaintiff, Thomas, and the defendant, Cummins, concerning the enforcement of a previous agreement documented in a Tomlin order. The case was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether it was appropriate to grant the application for enforcement of the Tomlin order on a summary basis, without a full hearing. This question turned on the unique facts and circumstances of the case, particularly whether there was a clear and unambiguous obligation on the part of the defendant to adhere to the terms of the order.

The court considered the nature and purpose of a Tomlin order, which is to record an agreement between parties, providing certainty and finality. It was noted that the enforceability of such an order should not be lightly interfered with, and any application to enforce should be straightforward if the terms are clear. However, the court emphasised that the decision to grant the application on a summary basis should depend on the specific facts of each case. In this instance, the court found that the terms of the Tomlin order were unambiguous and that the defendant had clearly breached the order. Consequently, the court granted the application and ordered the defendant to comply with the terms of the original agreement.

The final orders included an enforcement of the Tomlin order, requiring the defendant to adhere to the agreed terms, with specific timelines and consequences for non-compliance outlined in the judgment.

Orders