Advanced Electrical Equipment Pty Ltd v Mammoth Contracting Pty Ltd - [2018] WADC 43

[2018] WADC 43

JURISDICTION	:	DISTRICT COURT OF WESTERN AUSTRALIA
CITATION	:	ADVANCED ELECTRICAL EQUIPMENT PTY LTD -v- MAMMOTH CONTRACTING PTY LTD [2018] WADC 43

CORAM

: JUDGE BRADDOCK

HEARD

: 2 MARCH 2018

DELIVERED

: 4 APRIL 2018

FILE NO/S

:	CIV 241 of 2017

BETWEEN

:	ADVANCED ELECTRICAL EQUIPMENT PTY LTD Plaintiff

AND
MAMMOTH CONTRACTING PTY LTD
Defendant

Catchwords:

Practice and procedure - Summary judgment - Alleged defective goods -

Equitable set-off

Legislation:

District Court Rules 2005 O 15 r 6

Rules of the Supreme Court 1971 O 14, O 14 r 1(1), O 20 r 17

Result:

Judgment for plaintiff

[2018] WADC 43

Representation:

Counsel:

Plaintiff

Mr M G S Crowley

Defendant : Mr J R Birman

Solicitors:

Plaintiff

: Diana Velevski

Defendant : Birman & Ride

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

Gallo v Dawson (1990) 64 ALJR 458
Hazcor Pty Ltd v Kirwanon Pty Ltd (1995) 12 WAR 62
Maersk Australia Pty Ltd and Rebelo Nominees Pty Ltd [2005] WADC 81
McDonnell and East Ltd v McGregor (1936) 56 CLR 50
Morgan v Pallister [2004] WASC 188
Palaniappan v Westpac Banking Corporation [2016] WASCA 72
W Pope & Co Pty Ltd v Edward Souery & Co Pty Ltd [1983] WAR 117
Webster v Lampard (1993) 177 CLR 598
Westwind Air Charter Pty Ltd v Hawker De Havilland Ltd (1990) 3 WAR 71

[2018] WADC 43

JUDGE BRADDOCK

JUDGE BRADDOCK:

In this is application the plaintiff, Advanced Electrical Equipment Pty Ltd, sought summary judgment against the defendant, Mammoth Contracting Pty Ltd. The judgment seeks the sum of $122,362.76, plus interest, said to be due and owing for the supply of goods provided by the plaintiff to the defendant, at the defendant's request, between April and August 2016. This application comes before the court by way of review of the decision of a registrar dismissing the plaintiff's application on 30 August 2017. Such an appeal is conducted as a hearing de novo, pursuant to O 15 r 6 of the District Court Rules 2005.
The plaintiff filed a writ on 31 January 2017. A statement of claim was served on 22 March 2017. The defendant entered an appearance on 17 February 2017. The application seeking summary judgment was filed on 21 April 2017, together with an affidavit in support. Thus, the application was filed more than 21 days after the filing of the appearance. Pursuant to O14 r 1(1) Rules of the Supreme Court 1971 (RSC), the plaintiff was required to seek and has sought leave to make the application. The defendant did not oppose the grant of leave to extend time.
The registrar granted the application for an extension of time. The plaintiff says that it does not wish to disturb that order. An explanation for the delay was given in the affidavit in support of the application. The plaintiff says that after the defendant served its memorandum of appearance, solicitors for the plaintiff determined to amend the writ, resulting in some delay in…

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: [2018] WADC 43
Decision Date: 4 APRIL 2018

CaseChat Overview and Summary

Advanced Electrical Equipment Pty Ltd sought summary judgment against Mammoth Contracting Pty Ltd for the recovery of $122,362.76. The dispute arose from a contract for the supply and installation of electrical equipment, with Mammoth alleging that the goods were defective and seeking to counterclaim for consequential economic loss. The matter was heard in the Supreme Court of Western Australia.

The court was required to determine whether there was a defence to the plaintiff's claim and whether there was a basis for an equitable set-off. Mammoth argued that their counterclaim, if proven, could lead to an equitable set-off against the plaintiff's claim. The court examined the principles governing equitable set-off, particularly the decision in Palaniappan v Westpac Banking Corporation, which held that a recognised ground for equitable intervention must exist to establish an equitable set-off.

The court found that Mammoth's evidence at its highest did not establish a recognised ground for equitable intervention, as required by Palaniappan. The mere existence of a counterclaim did not suffice to create an equitable set-off. Therefore, the court concluded that there was no defence to the plaintiff's claim and no equitable set-off. Judgment was entered for the plaintiff in the sum of $122,362.76 plus interest. The court would hear counsel regarding the form of the orders and costs.

Orders

Orders of the court

Full text does not contain this section.

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

In my view, at its highest, the defendant's evidence foreshadows a counterclaim, alleging defective goods and consequential economic loss. It cannot give rise to an equitable set-off for the reasons stated in Palaniappan v Westpac Banking Corporation [2016] WASCA 72: An equitable set-off is available where the party claiming the set-off can establish a recognised ground for being protected, to the relevant extent, from the other party's demand. The set-off must essentially be bound up with and go to the root of, challenge, call in question or impeach the title of the other party. The mere existence of a cross-claim or cross-demand is not sufficient to establish an equitable set-off. There must be a recognised ground for equitable intervention (beyond the mere existence of a cross-claim or cross-demand) so that the equity of the party claim the set-off impeaches the title of the other party to the legal demand which it is seek to enforce. Accordingly, I conclude that there is no defence to the plaintiff's claim and no equitable set-off to support leave to defend. There will be judgment for the plaintiff in the sum of $122,362.76 plus interest. I will hear counsel as to the precise form of the orders and costs.