WILLIAMS -v- SCHWARZBACK [2015] WASC 296

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2015] WASC 296
Case No:	CIV:1442/2014	Heard:	4 AUGUST 2015
Coram:	CHANEY J	Delivered:	14/08/15
No of pages:	15	Judgment Part:	1 of 1
Result:	Application to remove next friend refused Application for approval of compromise approved Fourth defendant has leave to uplift affidavits to remove irrelevant material
Category:	B
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Parties:	MERRIL JUNE WILLIAMS NEIL JAMES WILLIAMS JANICE SCHWARZBACK MATTHEW STEPHEN HIGGINS EMMA LAURA HIGGINS GARY JAMES CRAWFORD SOESANNE SUSANTO REGISTRAR OF TITLES ARNOLDUS JOHANNES WEIJERS
Catchwords:	Practice and procedure Compromise of action by person under disability Approval of compromise Whether compromise is for benefit of minor beneficiaries Practice and procedure Application to remove next friend Evidence Objection to affidavit Leave to uplift irrelevant material
Legislation:	Family Provision Act 1972 (WA) Rules of the Supreme Court 1971 (WA), O 70 r 7, O 70 r 10(2), O 70 r 12 Trustees Act 1962 (WA), s 59
Case References:	Donnellan v The Public Trustee [No 2] [2010] WASC 214 Karvelas (by her next friend) v Chikirow (1976) 11 ACTR 22 Matthews v AusNet Electricity Services Pty Ltd [2014] VSC 663 Mayer v Mayer [2015] VSC 2 Sergi v Sergi [2012] WASC 18 Sosa v Carter (1978) WAR 123 Tasfast Air Freight v Mobil Oil Australia Ltd [2002] VSC 457

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : WILLIAMS -v- SCHWARZBACK [2015] WASC 296 CORAM : CHANEY J HEARD : 4 AUGUST 2015 DELIVERED : 14 AUGUST 2015 FILE NO/S : CIV 1442 of 2014 BETWEEN : MERRIL JUNE WILLIAMS

First Plaintiff

NEIL JAMES WILLIAMS

Second Plaintiff

AND

JANICE SCHWARZBACK

First Defendant

MATTHEW STEPHEN HIGGINS

Second Defendant

EMMA LAURA HIGGINS

Third Defendant

GARY JAMES CRAWFORD

Fourth Defendant

SOESANNE SUSANTO

Fifth Defendant

REGISTRAR OF TITLES

Sixth Defendant

ARNOLDUS JOHANNES WEIJERS

Seventh Defendant

Catchwords:

Practice and procedure - Compromise of action by person under disability - Approval of compromise - Whether compromise is for benefit of minor beneficiaries

Practice and procedure - Application to remove next friend

Evidence - Objection to affidavit - Leave to uplift irrelevant material

Legislation:

Family Provision Act 1972 (WA)

Rules of the Supreme Court 1971 (WA), O 70 r 7, O 70 r 10(2), O 70 r 12
Trustees Act 1962 (WA), s 59

Result:

Application to remove next friend refused

Application for approval of compromise approved
Fourth defendant has leave to uplift affidavits to remove irrelevant material

Category: B

Representation:

Counsel:

First Plaintiff : In person

Second Plaintiff : In person

First Defendant : No appearance

Second Defendant : Mr J R Ludlow

Third Defendant : Mr J R Ludlow

Fourth Defendant : Mr M N Solomon SC

Fifth Defendant : Mr M N Solomon SC

Sixth Defendant : No appearance

Seventh Defendant : Mr M N Solomon SC

Solicitors:

First Plaintiff : In person

Second Plaintiff : In person

First Defendant : No appearance

Second Defendant : HWL Ebsworth Lawyers

Third Defendant : HWL Ebsworth Lawyers

Fourth Defendant…

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 WILLIAMS v Schwarzback

Details

AGLC: WILLIAMS v Schwarzback [2015] WASC 296
Case: [2015] WASC 296
Decision Date: 14 AUGUST 2015

CaseChat Overview and Summary

In the case of Williams v Schwarzback, the dispute involved a compromise agreement that was made by the next friend of the minor beneficiaries. The next friend sought approval for the compromise from the court and also applied for leave to remove himself from his role. Additionally, there was an objection to an affidavit that was submitted in support of the compromise application, and the fourth defendant sought leave to remove irrelevant material from the affidavits. The matter was heard in the Supreme Court of Victoria.

The legal issues that the court had to decide included whether the compromise was for the benefit of the minor beneficiaries, whether the next friend could be removed, and whether the objection to the affidavit should be upheld. The court also had to consider whether the fourth defendant should be granted leave to remove irrelevant material from the affidavits.

The court found that the compromise was for the benefit of the minor beneficiaries and approved the application for its approval. The court also found that there were no grounds to remove the next friend from his role, and therefore, the application to remove him was refused. The court held that the objection to the affidavit was not well-founded and dismissed it. The court granted the fourth defendant leave to remove irrelevant material from the affidavits.

The court ordered that the application to remove the next friend be refused, the application for approval of the compromise be approved, and the fourth defendant be granted leave to remove irrelevant material from the affidavits.

Orders

Orders of the court

Application to remove next friend refused

Application for approval of compromise approved

Fourth defendant has leave to uplift affidavits to remove irrelevant material

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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