WORTHINGTON -v- WORTHINGTON [2013] WASC 220

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASC 220
Case No:	CIV:3264/2011	Heard:	ON THE PAPERS
Coram:	KENNETH MARTIN J	Delivered:	5/06/13
No of pages:	5	Judgment Part:	1 of 1
Result:	Application to strike out statement of claim refused
Category:	B
PDF Version

Parties:	MICHELLE PATRICIA WORTHINGTON CATHERINE SIU GUE WORTHINGTON
Catchwords:	Practice and procedure Strike out application Further amended statement of claim Failure to disclose cause of action Oral contract Constructive trust Occupied shed
Legislation:	Property Law Act 1969 (WA), s 34(1)(a) Rules of the Supreme Court 1971 (WA), O 20 r 19(2) Statute of Frauds 1667 (Imp), s 4
Case References:	Abjornson v Urban Newspapers Pty Ltd [1989] WAR 191 General Steel Industries Inc v Commissioner for Railways (NSW) (1984) 112 CLR 125

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : WORTHINGTON -v- WORTHINGTON [2013] WASC 220 CORAM : KENNETH MARTIN J HEARD : ON THE PAPERS DELIVERED : 5 JUNE 2013 FILE NO/S : CIV 3264 of 2011 BETWEEN : MICHELLE PATRICIA WORTHINGTON

Plaintiff

AND

CATHERINE SIU GUE WORTHINGTON

Defendant

Catchwords:

Practice and procedure - Strike out application - Further amended statement of claim - Failure to disclose cause of action - Oral contract - Constructive trust - Occupied shed

Legislation:

Property Law Act 1969 (WA), s 34(1)(a)

Rules of the Supreme Court 1971 (WA), O 20 r 19(2)
Statute of Frauds 1667 (Imp), s 4

Result:

Application to strike out statement of claim refused

(Page 2)

Category: B

Representation:

Counsel:

Plaintiff : No appearance

Defendant : No appearance

Solicitors:

Plaintiff : Birman & Ride

Defendant : Civic Legal

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

Abjornson v Urban Newspapers Pty Ltd [1989] WAR 191
General Steel Industries Inc v Commissioner for Railways (NSW) (1984) 112 CLR 125

(Page 3)

1 KENNETH MARTIN J: This is a strike out application heard on the papers. The defendant is challenging pars 4, 13 and 14 of the plaintiff's amended statement of claim filed in these proceedings on 14 February 2013. The challenge is brought under agreed directions which were made pursuant to a minute consensually submitted by the parties on 11 March 2013 (see my orders of 13 March 2013). The application is brought subsequent to the filing of a defence by the defendant on 5 March 2013.

Factual background

2 The underlying facts concern some rather crude extended family arrangements entered without legal advice in May or June 2010 regarding land at Bullsbrook known as 'Heaslane Court'. The plaintiff is the daughter of the late Harold Worthington and Alanna Worthington. It is said that Harold and the defendant (Catherine) married in about 1987, this being Harold's second marriage. In early 2010 Harold and Catherine were the proprietors (as joint tenants) of Heaslane Court and lived there. Harold was ill with cancer. In May or June 2010 it appears that some verbal arrangements were entered pursuant to which his daughter Michelle (the plaintiff) and Harold's first wife, Alanna…

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: [2013] WASC 220
Decision Date: 5 JUNE 2013

CaseChat Overview and Summary

The dispute in Worthington v Worthington involved a claim by the plaintiff against the defendant for the establishment of a constructive trust over a shed on the defendant's property. The case was heard in the Supreme Court of Victoria, where the defendant sought to have the plaintiff's further amended statement of claim struck out. The defendant argued that the plaintiff had failed to disclose a cause of action and that the claim was based on an oral contract, which was not supported by written evidence.

The primary legal issue before the court was whether the plaintiff's further amended statement of claim disclosed a reasonable cause of action. The court also needed to consider whether the plaintiff had complied with the procedural requirements of the court in relation to the amendment of the statement of claim. Additionally, the court had to assess whether the oral contract alleged by the plaintiff was sufficiently substantiated to warrant further proceedings.

The court determined that the plaintiff's further amended statement of claim did disclose a reasonable cause of action. The court held that the plaintiff had adequately pleaded the necessary elements to establish a constructive trust over the shed. The court rejected the defendant's argument that the failure to provide written evidence of the alleged oral contract precluded the claim. The court emphasised that the existence of an oral contract did not necessarily require written documentation and that the plaintiff's oral testimony, if supported by other evidence, could be sufficient. The court found that the plaintiff's claim was not premature and that it was in the interests of justice to allow the matter to proceed to trial. Accordingly, the court refused the defendant's application to strike out the statement of claim.

Orders

Orders of the court

Application to strike out statement of claim refused

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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