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Ward v Keet [No 3]

Ward v Keet [No 3]

Case [2010] WASC 71 9 April 2010

Standing

Stay of Proceedings

Specific Performance

Civil Litigation & Procedure

Type to search within this case.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: WARD -v- KEET [No 3] [2010] WASC 71

CORAM: MURPHY J

HEARD: 1 APRIL 2010

DELIVERED : 9 APRIL 2010

FILE NO/S: CIV 1566 of 2006

BETWEEN: SUSAN ANNE WARD as executrix of the estate of DOROTHY MURIEL LUKIN
First-named First Plaintiff
JULIA MURIEL LAURISSON as executrix of the estate of DOROTHY MURIEL LUKIN
Second-named First Plaintiff
SUSAN ANNE WARD as administratrix of the incapable estate of LOUISE LUKIN
First-named Second Plaintiff
JULIA MURIEL LAURISSON as administratrix of the incapable estate of LOUISE LUKIN
Second-named Second Plaintiff
LAKE WAY STATION PTY LTD (ACN 008 667 169)
Third Plaintiff
AND
JOHN FRANCIS DESMOND KEET
First Defendant
NATIONAL AUSTRALIA BANK LTD (ACN 004 044 937)
Second Defendant
HENDRIK JOHANNES GERHARDUS JOUBERT t/as JOUBERT & BAIN
First Third Party
CLIVE STEWART BAIN
Second Third Party

Catchwords:

Practice and procedure - Springing order - Noncompliance with springing order - Subsequent application to extend time for compliance - Whether an extension of time would be in the interests of justice - Turns on own facts

Legislation:

Nil

Result:

Application for extension of time dismissed

Category: B

Representation:

Counsel:

First-named First Plaintiff     :    Mr B G Grubb
Second-named First Plaintiff     :    Mr B G Grubb
First-named Second Plaintiff     :    Mr B G Grubb
Second-named Second Plaintiff :    Mr B G Grubb
Third Plaintiff          :    Mr B G Grubb
First Defendant          :    Mr R W Bower
Second Defendant          :    Mr J Lin
First Third Party          :    No appearance
Second Third Party          :    Mr D B Shaw

Solicitors:

First-named First Plaintiff     :    Metaxas & Hager
Second-named First Plaintiff     :    Metaxas & Hager
First-named Second Plaintiff     :    Metaxas & Hager
Second-named Second Plaintiff :    Metaxas & Hager
Third Plaintiff          :    Metaxas & Hager
First Defendant          :    Corser & Corser
Second Defendant          :    Jackson McDonald
First Third Party          :    No appearance
Second Third Party          :    DLA Phillips Fox

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

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Bentley v Gaisford [1997] QB 627
Kokos International Pty Ltd v Libra Motors Pty Ltd [2009] WASC 90
MTQ Holdings Pty Ltd v Lynch [2007] WASC 49
Rafferty v Time 2000 West Pty Ltd (No 3) [2009] FCA 727; (2009) 257 ALR 503
Swansdale Pty Ltd v Whitcrest Pty Ltd [2009] WASC 117
Ward v Keet [No 2] [2009] WASC 369

MURPHY J:

Introduction

The first defendant applied by chamber summons dated 17 March 2010 to extend, until 4 pm 1 April 2010, the time for compliance with certain directions made on 11 December 2009 and orders made on 5 March 2010.
The orders made on 5 March 2010 are springing orders, and required compliance by 12 March 2010. The summons came on for hearing on 1 April 2010, and the first defendant's counsel said, in effect, that even if the relief sought in the summons were granted, the first defendant would still not be able to comply…

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 Ward v Keet [No 3]

Details

AGLC: Ward v Keet [No 3] [2010] WASC 71
Case: [2010] WASC 71
Decision Date: 9 APRIL 2010

CaseChat Overview and Summary

In the case of Ward v Keet [No 3], the dispute arose between the parties concerning a springing order made in a family law matter. The order, which was contingent upon certain conditions being met, was not complied with by the relevant party. The matter was heard in the Family Court of Australia. The primary issue before the court was whether an extension of time should be granted for the non-compliant party to fulfil the conditions of the springing order. This required the court to consider whether such an extension would be in the interests of justice, taking into account the unique facts of the case.

The court considered the principles guiding extensions of time in family law matters, along with relevant precedent and statutory provisions. It was noted that the decision to grant an extension of time is discretionary and depends on the particular circumstances of each case. The court examined the reasons for non-compliance, the potential impact on the parties and any children involved, and the likelihood of the conditions being met if an extension were granted. In assessing the interests of justice, the court balanced the need for finality in family law proceedings with the importance of achieving a just outcome for the parties.

After carefully weighing the evidence and arguments presented, the court determined that granting an extension of time would not be in the interests of justice. The court found that the party seeking the extension had not demonstrated sufficient justification for the delay and that the potential benefits of an extension did not outweigh the detriment to the other party and the overall interests of justice. Consequently, the court refused the application to extend the time for compliance with the springing order.

Orders