Appeal against Registrar's decision to refuse application for proceedings to be conducted as though commenced by writ of summons
Originating summons filed by plaintiff seeking proper construction of commercial instrument
Plaintiff sought to enlarge relief to include breach issue after the decision was made by the Registrar
Quick Take
1The originating summons procedure under O 58 r 10 RSC (WA) is only appropriate where a construction issue can be resolved on the instrument itself without disputed questions of fact or reliance on evidence; where substantive defences raising factual disputes are foreshadowed with sufficient particularity, conversion to a writ proceeding is required for procedural fairness.
2A plaintiff's enlargement of relief to include a breach declaration — requiring findings of fact — after an originating summons has been filed may warrant conversion, particularly where the finding could create an issue estoppel against the defendant.
3Merely foreshadowing disputed facts or substantive defences without more is insufficient to compel conversion; the court must be satisfied the issues and defences are not spurious or unmeritorious, assessed at a level of generality.
