Wellstead v Wellstead - [2017] WASC 73

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: WELLSTEAD -v- WELLSTEAD [2017] WASC 73

CORAM: MASTER SANDERSON

HEARD: 14 MARCH 2017

DELIVERED : 14 MARCH 2017

PUBLISHED : 17 MARCH 2017

FILE NO/S: CIV 2809 of 2016

BETWEEN: GRAHAM JOHN WELLSTEAD
Plaintiff
AND
GWENDOLINE WELLSTEAD
First Defendant
SUSANNE JANE CHEETHAM in her capacity as Executor of the Estate of the Late JAMES JOHN WELLSTEAD
Second Defendant
WELLSTEAD BILLABONG PTY LTD
Third Defendant

Catchwords:

Practice and procedure - Application by defendant for summary judgment - Turns on own facts

Legislation:

Nil

Result:

Defendant's application for summary judgment dismissed

Category: B

Representation:

Counsel:

Plaintiff:     Mr S Penglis
First Defendant              :     Mr J D MacLaurin
Second Defendant         :     Mr J D MacLaurin
Third Defendant            :     Mr J D MacLaurin

Solicitors:

Plaintiff:     Kings Park Corporate Lawyers
First Defendant              :     Metaxas & Hager
Second Defendant         :     Metaxas & Hager
Third Defendant            :     Metaxas & Hager

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

Permanent Mortgages Pty Ltd v Vandenbergh [2010] WASC 10; (2010) 41 WAR 353

MASTER SANDERSON: This was the defendants' application for summary judgment. An extension of time was required to bring the application and no issue was taken by the plaintiff on that question. Accordingly, I extended time. After hearing argument I indicated to the parties I would dismiss the defendants' application and publish reasons for my decision. These are those reasons.
Unlike applications for summary judgment by a plaintiff under O 14, a defendant who is unsuccessful on a summary judgment application under O 16 has a right of appeal. Accordingly, reasons need to be provided for dismissing the summary judgment application. Those reasons must disclose the basis upon which the application is dismissed. However, as the matter will now proceed through to trial no finding of fact can be made nor is it appropriate to deal in depth with the legal issues raised by the parties. These reasons should be read in that light.
One of the difficulties with this application is that the statement of claim in its present form is manifestly defective. Counsel for the plaintiff admitted as much during the course of the hearing. Nonetheless, leaving to one side the pleading difficulties, it is possible to ascertain the cause of action the plaintiff seeks to advance. The plaintiff is the son of the first defendant and the late James John Wellstead. The defendants between them own a number of farming properties which are described in the statement of claim as 'Billabong'. The plaintiff alleges that between 1977 and 2000 his mother and father made certain representations to the effect that the plaintiff would receive Billabong. Paragraph 8 of the present statement of claim pleads these 'representations' and other related matters which can, for present purposes, be put to one side. The plaintiff alleges that, acting on the representation, he continued to work on Billabong and eschewed other employment and investment opportunities. He also says that he invested some $225,000 in improvements to Billabong. He alleges despite…

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: [2017] WASC 73
Decision Date: 17 MARCH 2017

CaseChat Overview and Summary

In the matter of Wellstead v Wellstead, the defendant sought summary judgment in the Federal Circuit Court of Australia. The dispute arose from an agreement between the parties, whereby the defendant was to pay the plaintiff $12,000 in monthly instalments. The defendant argued that the plaintiff had breached the agreement and sought to avoid payment. The court was required to determine whether the defendant's application for summary judgment should be granted based on the facts presented.

The primary legal issue before the court was whether the defendant's application for summary judgment should be granted. The court had to consider whether there was a triable issue of fact that would necessitate a trial. Additionally, the court needed to assess whether the defendant's application was appropriate given the facts of the case.

The court held that the defendant's application for summary judgment should not be granted as there was a triable issue of fact. The judge found that the evidence presented by the defendant was insufficient to determine whether the plaintiff had breached the agreement. Furthermore, the judge considered the defendant's application to be inappropriate given the facts of the case. The court ultimately rejected the defendant's application for summary judgment and ordered that the matter proceed to trial.

The final orders of the court were that the defendant's application for summary judgment was dismissed, and the matter was to proceed to trial to determine the merits of the defendant's defence. The plaintiff was granted costs of the application.

Orders