JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: A-NANTA -v- DEEWISED [2018] WADC 154
CORAM: LONSDALE DCJ
HEARD: 26 SEPTEMBER 2018
DELIVERED : 14 NOVEMBER 2018
FILE NO/S: CIV 3929 of 2017
BETWEEN: NATATORN A-NANTA
First-named First Plaintiff
KAO SAN PTY LTD
Second-named First Plaintiff
PARADEE PARNPRADITKUL
Second Plaintiff
SATIT PARNPRADITKUL
Third Plaintiff
AND
KANITSAJEE DEEWISED
First-named Defendant
ANUTRA TADSANAPRASITTIPOL
Second-named Defendant
HATHAIKARN SIRIPHRAIWAN
Third-named Defendant
Catchwords:
Application for summary judgment by defendant - Failure to identify correct parties - Whether adequate foundation to strike out a writ
Legislation:
Corporations Act 2001 (Cth), s 127
Rules of the Supreme Court 1971, O 16 r 1
Result:
Appeal allowed
Representation:
Counsel:
| First-named First Plaintiff | : | Mr G E Metaxas |
| Second-named First Plaintiff | : | Mr G Metaxas |
| Second Plaintiff | : | Mr G E Metaxas |
| Third Plaintiff | : | Mr G E Metaxas |
| First-named Defendant | : | Mr M J Keating |
| Second-named Defendant | : | Mr M J Keating |
| Third-named Defendant | : | Mr M J Keating |
Solicitors:
| First-named First Plaintiff | : | Metaxas Legal |
| Second-named First Plaintiff | : | Metaxas Legal |
| Second Plaintiff | : | Metaxas Legal |
| Third Plaintiff | : | Metaxas Legal |
| First-named Defendant | : | Valenti Lawyers |
| Second-named Defendant | : | Valenti Lawyers |
| Third-named Defendant | : | Valenti Lawyers |
Case(s) referred to in decision(s):
Air Tahiti Nui Pty Ltd v McKenzie [2009] NSWCA 429; (2009) 77 NSWLR 299
Alonso v SRS Investments (WA) Pty Ltd [2012] WASC 168
Anderson v Effexseven (1998) 10 ANZ Ins Cas 61–424
Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153
Harold R Finger & Co Pty Ltd v Karellas Investments Pty Ltd [2015] NSWSC 354
Kao San Pty Ltd v Kanitsajee Deewised [2018] WADC 42
Knights Capital Group Ltd v Bajada and Associates Pty Ltd [2016] WASC 69
Lederberger (as executors of the deceased estate of Lederberger) v Mediterranean Olives Financial Pty Ltd [2012] VSCA 262; (2012) 38 VR 509
Palaniappan v Westpac Banking Corporation [2016] WASCA 72
Pethybridge v Stedikas Holdings Pty Ltd [2007] NSWCA 154
SAS Global Forrestdale 2 Ltd v Claycorp Investments Pty Ltd (as Trustee for Claycorp Investment Trust) [2010] WASC 114
Servcorp WA Pty Ltd v Perron Investments Pty Ltd [2016] WASCA 79
LONSDALE DCJ:
Introduction
On 27 October 2017 the plaintiffs commenced an action against the defendants for breach of an agreement for the sale of a restaurant business trading under the name 'Kao San Café'. The statement of claim endorsed on the writ asserted that the defendants breached the agreement by failing to pay an instalment of $40,000 towards the purchase price.
On 17 November 2017 the defendants filed a chamber summons seeking summary judgment pursuant to O 16 r 1 of the Rules of the Supreme Court 1971 (WA) which reads:
(1)Any defendant to an action may within 21 days after appearance or at any later time by leave of the Court, apply to the Court for summary judgment, and the Court, if satisfied that the action is frivolous or vexatious,…
Continue reading A-Nanta v Deewised
Sign in free to access the full text
- AGLC
- A-NANTA v Deewised [2018] WADC 154
- Case
- [2018] WADC 154
- Decision Date
CaseChat Overview and Summary
The legal issues that the court had to decide involved the interpretation of the contract and the identification of the correct parties. The primary question was whether the plaintiff had identified the correct party to be sued in the writ, given the ambiguity in the terms of the agreement. The court had to consider the language of the contract, the circumstances under which it was made, and the commercial purpose or objects to be secured by the contract. Additionally, the court had to examine the surrounding circumstances and the objective intention of the parties as to who the contracting parties were.
The court, in reaching its decision, applied the principles of objective contract interpretation, as highlighted in previous cases such as Palaniappan v Westpac Banking Corporation and Air Tahiti Nui Pty Ltd v McKenzie. The court found that the plaintiff had not provided an adequate foundation for the application for summary judgment because the issue of whether the correct party was identified was not clear and required further investigation into the surrounding circumstances and the objective intentions of the parties. The court concluded that the matter could not be resolved through summary judgment and required a more detailed examination of the contract and the context in which it was made.
The final orders of the court were that the application for summary judgment by Deewised was dismissed. The court ruled that there was insufficient evidence to determine whether the plaintiff had correctly identified the party to be sued, and therefore, the case would proceed to a full hearing to allow for a proper examination of the contract and the surrounding circumstances.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Buss JA made similar observations in Palaniappan v Westpac Banking Corporation [2016] WASCA 72 [92]:It is necessary, in determining the meaning of the provisions of a commercial contract, to ask what a reasonable businessperson would have understood those provisions to mean. That inquiry will require consideration of the language of the contract, the circumstances addressed by the contract and the commercial purpose or objects to be secured by the contract. See Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640 [35] (French CJ, Hayne, Crennan & Kiefel JJ). (citations omitted) A situation similar to that present in this case arose in SAS Global Forrestdale 2 Ltd v Claycorp Investments Pty Ltd (as Trustee for Claycorp Investment Trust) [2010] WASC 114. In that case the plaintiff argued that the defendant incorrectly identified a party to an agreement where the seller (under a contract for the sale of property) was not the party who possessed the title to the relevant lots. The plaintiff filed an application for summary judgment against the defendant on the grounds that there could be no cause of action against the named defendant. Beech J at [67] held that situation to have been 'an inadequate foundation for summary judgment on this point of construction'. The question of how the correct parties are to be identified where there is ambiguity in the terms of a written agreement was considered in Air Tahiti Nui Pty Ltd v McKenzie [2009] NSWCA 429; (2009) 77 NSWLR 299 [28]. In that case, Allsop P and Handley AJA in a joint judgment (Hodgson JA agreeing) said the following:The identity of the contracting party is to be determined looking at the matter objectively, examining and construing any relevant documents in the factual matrix in which they were created and ascertaining between whom the parties objectively intended to contract. This is, to a point, a process of construction similar to the task of identifying whether a clearly contractual document (such as a bill of lading) is made with one party or another (such as a shipowner or time charterer): Homburg Houtimport BV v Agrosin Private (at 770) and the cases considered in M Wilford, T Coghlin and J D Kimball, Time Charters 5th ed (2003) London, Lloyds of London Press, Ch 21. Where the documents are silent or ambiguous, but there is undoubtedly a contract, the identity of the parties must be determined objectively from the surrounding circumstances (citations omitted). In Lederberger (as executors of the deceased estate of Lederberger) v Mediterranean Olives Financial Pty Ltd [2012] VSCA 262; (2012) 38 VR 509 at [19] the Victorian court of appeal said:Identification of the parties to a contract must be in accordance with the objective theory of contract. That is the intention that a reasonable person, with the knowledge of the words and actions of the parties communicated to each other, and the knowledge that the parties had of the surrounding circumstances, would conclude that the parties had. The process of construction requires consideration of not only the text of the documents, but also the surrounding circumstances known to the parties and the purpose and object of the transaction. This, in turn, presupposes knowledge of the genesis of the transaction, the background, and the context in which the parties are operating.