WESTPOINT CORPORATION PTY LTD & ORS -v- MARSH & ORS [2005] WASC 29

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASC 29
Published:	09/03/2005
Case No:	CIV:1579/2003	Heard:	20 DECEMBER 2004
Coram:	MASTER SANDERSON	Delivered:	20/12/04
No of pages:	9	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
PDF Version

Parties:	WESTPOINT CORPORATION PTY LTD (ACN 009 395 751) NORMAN PHILIP CAREY SHARYN JOAN VOST JANINE SUE MARSH KAREN RICHARDSON DIANE CAREY
Catchwords:	Practice and procedure Appeal from decision of Registrar Turns on own facts
Legislation:	Nil
Case References:	Nil The Commonwealth of Australia v Verwayen (1990) 170 CLR 394 Fergusan & Anor v Mackaness Produce Pty Ltd [1970] 2 NSWR 66 Inform Formwork Pty Ltd v McInnes Concrete Service Pty Ltd, unreported; FCt SCt of WA; Library No 950611; 15 November 1995 Ketteman v Hansel Properties Ltd [1987] AC 189 Skahill v Kestral Holdings Pty Ltd (In Liq) & Ors [2000] WASCA 185 State of Queensland & Anor v J L Holdings Pty Ltd, unreported; FCt Fed Ct; BC 9605189; 29 October 1996 Walthamstow Pty Ltd v Gioinvinazzo [2003] WASC 249

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : WESTPOINT CORPORATION PTY LTD & ORS -v- MARSH & ORS [2005] WASC 29 CORAM : MASTER SANDERSON HEARD : 20 DECEMBER 2004 DELIVERED : 20 DECEMBER 2004 PUBLISHED : 9 MARCH 2005 FILE NO/S : CIV 1579 of 2003 BETWEEN : WESTPOINT CORPORATION PTY LTD (ACN 009 395 751)

First Plaintiff

NORMAN PHILIP CAREY

Second Plaintiff

SHARYN JOAN VOST

Third Plaintiff

AND

JANINE SUE MARSH

First Defendant

KAREN RICHARDSON

Second Defendant

DIANE CAREY

Third Defendant

(Page 2)

Catchwords:

Practice and procedure - Appeal from decision of Registrar - Turns on own facts

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

First Plaintiff : Mr G T Stubbs

Second Plaintiff : Mr G T Stubbs

Third Plaintiff : No appearance

First Defendant : Mr D M Fairweather

Second Defendant : Mr C E Chenu

Third Defendant : No appearance

Solicitors:

First Plaintiff : Dwyer Durack

Second Plaintiff : Dwyer Durack

Third Plaintiff : No appearance

First Defendant : Maxim Litigation Consultants

Second Defendant : Durack & Zilko

Third Defendant : No appearance

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

Nil

(Page 3)

Case(s) also cited:

The Commonwealth of Australia v Verwayen (1990) 170 CLR 394
Fergusan & Anor v Mackaness Produce Pty Ltd [1970] 2 NSWR 66
Inform Formwork Pty Ltd v McInnes Concrete Service Pty Ltd, unreported; FCt SCt of WA; Library No 950611; 15 November 1995
Ketteman v Hansel Properties Ltd [1987] AC 189
Skahill v Kestral Holdings Pty Ltd (In Liq) & Ors [2000] WASCA 185
State of Queensland & Anor v J L Holdings Pty Ltd, unreported; FCt Fed Ct; BC 9605189; 29 October 1996
Walthamstow Pty Ltd v Gioinvinazzo [2003] WASC 249

(Page 4)

1 MASTER SANDERSON: This was an appeal from a decision of Registrar Boyle, handed down on 5 November 2004. At the conclusion of the hearing…

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: [2005] WASC 29
Decision Date

CaseChat Overview and Summary

Westpoint Corporation Pty Ltd and others brought an appeal against Marsh and others, challenging a decision made by Registrar Boyle in the Supreme Court of Western Australia. The appeal concerned the striking out of the plaintiffs' statement of claim for failure to comply with case management directions for discovery of documents. The plaintiffs sought to overturn the orders made by Registrar Boyle, which included striking out the statement of claim and imposing conditions for compliance with discovery obligations. The court considered eight grounds of appeal, including claims that the Registrar failed to balance the prejudice to the parties, did not give sufficient weight to the change of solicitors, and took into account the merits of the plaintiffs' claims. The court dismissed the appeal, upholding the Registrar's decision. It found that the Registrar had fairly balanced the interests of both parties, and the conditions imposed for discovery were appropriate. The plaintiffs were ordered to pay the defendants' costs of the appeal and the costs associated with the discharge of the stay of execution.

Orders