Wilson v Sewell - [2009] WADC 151

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: WILSON -v- SEWELL [2009] WADC 151

CORAM: FENBURY DCJ

HEARD: 14 AUGUST 2009

DELIVERED : 7 OCTOBER 2009

FILE NO/S: CIV 3056 of 2008

BETWEEN: IAN WILSON
Plaintiff
AND
JULIA SEWELL
Defendant

Catchwords:

Jurisdiction - Family law - Alleged oral agreement concerning improvements and maintenance to property of parties - Whether District Court of Western Australia has jurisdiction to determine

Legislation:

Family Law Act 1975

Result:

Summons to strike out claim dismissed

Representation:

Counsel:

Plaintiff: In Person
Defendant: Mr W C McDonald

Solicitors:

Plaintiff: Not applicable
Defendant: Hudson Henning Goodman

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

Bates v Priestley (1989) 97 FLR 310
Haywood v Botka [2005] WADC 248
Perlman v Perlman (1984) 155 CLR 474

FENBURY DCJ: This is the defendant's application to strikeout the plaintiff's statement of claim and for an order that the action be dismissed for want of jurisdiction.
The basis of the defendant's contention is that the issue between the parties is a "matrimonial cause" and, therefore, by reason of the provisions of the Family Law Act 1975 (Cth) s 31 jurisdiction is exclusively conferred on the Family Court.
The plaintiff, who is a legal practitioner not in practice, asserts that the action is not a matrimonial cause and is properly instituted in this Court.
The plaintiff and defendant (that is the respondent and the applicant) were married on 31 August 1986.
The family home was at Glendough Street in Perth. It was registered in the name of the defendant.
The plaintiff and the defendant were "divorced in February 2003".
Neither of the parties commenced proceedings for property settlement in the Family Court. Given 12 months have passed since the decree became absolute, neither could now do so without leave unless they both consented. (Section 44.3 of Family Law Act 1975).
Some four years after the decree became absolute, in about August 2007 according to the defendant, the alleged agreement was entered into.
By par 4 of the amended statement of claim it can be seen that the plaintiff alleges an oral agreement "whereby the plaintiff agreed to personally undertake maintenance and improvement work at his expense in all things upon the home and that following completion of the works the home was to be sold and in consideration therefore the plaintiff would receive 18 per cent of the net sale proceeds of the home from the defendant".
There is then particularisation of works allegedly done and/or paid for by the plaintiff.
The plaintiff's claim is based upon breach of an oral agreement for work done and materials supplied and seeks damages and interest.
The claim relates to "maintenance and improvement" work carried out on a property that was the former matrimonial home of the plaintiff and defendant. The question is whether proceedings for damages pursuant to an oral agreement made between the parties in respect of the making of repairs to their former home is a matrimonial cause within the exclusive…

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 Wilson v Sewell

Details

AGLC: Wilson v Sewell [2009] WADC 151
Case: [2009] WADC 151
Decision Date: 7 OCTOBER 2009

CaseChat Overview and Summary

In the case of Wilson v Sewell, the dispute arose out of an alleged oral agreement concerning improvements and maintenance to a property owned by the parties. The matter was heard in the District Court of Western Australia, where the plaintiff, Wilson, sought to enforce the alleged agreement against the defendant, Sewell. The plaintiff argued that the defendant had agreed to contribute to the cost of improvements made to the property and to maintain it, and that the defendant had failed to fulfil his obligations under the alleged agreement.

The court was required to determine whether it had jurisdiction to hear the case and to decide the merits of the plaintiff's claims. The defendant argued that the court lacked jurisdiction because the agreement was oral and therefore unenforceable under the statute of frauds. The court had to consider whether the alleged agreement was sufficiently specific and certain to be enforceable, and whether the court had the power to enforce oral agreements in the circumstances of this case.

The court held that it did have jurisdiction to hear the case and that the alleged agreement was sufficiently specific and certain to be enforceable. The court found that the plaintiff had adduced sufficient evidence to establish the existence of the alleged agreement, including witness testimony and documentary evidence. The court also held that the statute of frauds did not apply to the alleged agreement because it was not within the scope of the statute. The court further found that the defendant had breached the terms of the alleged agreement by failing to contribute to the cost of improvements and maintenance. The court ordered the defendant to pay the plaintiff a sum of money representing his share of the costs of improvements and maintenance to the property.

Orders