Watson v Watson

[1999] WASC 117

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   WATSON -v- WATSON [1999] WASC 117

CORAM:   MASTER BREDMEYER

HEARD:   30 JULY 1999

DELIVERED          :   6 AUGUST 1999

FILE NO/S:   CIV 1745 of 1997

BETWEEN:   FLORENCE ALICE WATSON

Plaintiff

AND

BRUCE COURTENAY WATSON
Defendant

Catchwords:

Particulars - Application for particulars and other directions

Legislation:

Nil

Result:

Application dismissed in part

Representation:

Counsel:

Plaintiff:     Mr P J Gethin

Defendant:     Mr M H Zilko

Solicitors:

Plaintiff:     Patrick Gethin & Co

Defendant:     Holden Barlow

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

Nil

Case(s) also cited:

Nil

1. MASTER BREDMEYER:  This is an application by the plaintiff in a chamber's summons dated 1 July 1999 for further particulars and other orders. 

2. Re par 1(a) of the chamber summons.  Par 8 of the amended defence pleads that certain payments were made by the defendant for the years ending 30 June 1978, 1979 etc.  In all, 13 years and 13 payments are mentioned.  Those payments are admitted in par 5.1 of the amended reply.  That being so, there is no live issue over these payments.  The particulars sought are the dates of each payment.  The plaintiff said that was important for the calculation of interest.  The defendant's calculation of interest for each of these payments runs from 1 July next.  The plaintiff is given a benefit there.  A payment may have been made on say 1 February, the defendant has claimed interest only from 1 July next.  I therefore propose to refuse the plaintiff's request for further particulars of these payments.

3. Par 1(b) of the chamber's summons also relates to par 8 of the amended defence and the payments listed there.  The defendant pleads he paid those amounts to the plaintiff in those years.  He does not say what the payments were for.  As I have said the plaintiff in her reply admits receiving them.  The plaintiff's request for particulars asks if these payments were made under an agreement, and if so, what agreement, was it oral or written etc.

4. The agreement (if any) under which these payments were made is not an issue in the pleadings.  But some hint as to what the payments were for is found in par 11 of the amended counter‑claim and in the schedule thereto.  These payments are there said to be for rents in respect of the plaintiff's land rented to the defendant.  There is no plea that they were agreed rents so I assume that they were not.  There is no plea that these rents were fixed by a single arbitrator appointed by the president of the WA branch of the Commonwealth Institute of Valuers as was supposed to happen under the 1977 deed.  Indeed the schedule sets out how the rents paid differed from the proper rents as fixed recently by a valuer.  I consider the request does not relate to an issue in the case and propose to refuse it.

5. I will rescind the order made by the Registrar on 9 June 1999 that the plaintiff achieve entry for trial by 13 July 1999.  I will set a new goal that the plaintiff achieve entry for trial by 15 September 1999.

6. The plaintiff has asked that I transfer this action to the District Court.  That application is opposed.  I note that mediation of this trial was attempted in this Court.  I propose to dismiss this application.  I think having started in this Court it is appropriate that this Court should try the action although it does not appear to be one of any special difficulty.

7. I consider that the defendant has won this application and I will order that the plaintiff pay the defendant's costs of this application in any event.