| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : AL BASSAM INVESTMENTS PTY LTD -v- RAMIREZ & ORS [2005] WADC 22 CORAM : COMMISSIONER STAVRIANOU HEARD : 14 FEBRUARY 2005 DELIVERED : 18 FEBRUARY 2005 FILE NO/S : CIV 1427 of 2004 BETWEEN : AL BASSAM INVESTMENTS PTY LTD (ACN 06 919 960) Plaintiff
AND
RAFAEL RAMIREZ
LIZA MAREE RAMIREZ
First Defendants
STEVE SMILKOVIC AND JOE SILVESTRI T/AS FIVE STAR POOLS
Second Defendants
ON APPEAL FROM:
For File No : CIV 1427 of 2004 Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA Coram : DEPUTY REGISTRAR HARMAN File No : CIV 1427 of 2004
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Catchwords:
Practice and procedure - Application for summary judgment - Appeal against dismissal of application for summary judgment - Turns on its own facts
Legislation: Rules of the Supreme Court 1971, O 14, r 1
Result: Appeal dismissed Representation:
Counsel:
Plaintiff : Mr R D Shaw
First Defendants : Mr L Chiat
Second Defendants : Ms R Consentino
Solicitors:
Plaintiff : Phillips Fox
First Defendants : Srdarov Richards Burton
Second Defendants : Gibson & Gibson
Case(s) referred to in judgment(s):
Fancourt & Anor v Mercantile Credits Ltd (1983) 154 CLR 87
Morgan v Pallister [2004] WASC 188
Case(s) also cited:
Cordinup Resorts Pty Ltd v Terana Holdings Pty Ltd (1997) 143 FLR 18
Crabtree-Vickers Pty Ltd v Australian Direct Mail Advertising & Addressing Co (1975) 133 CLR 72
Prospect Industries Pty Ltd v Anscor Pty Ltd [2003] QSC 296
Southern Resources Ltd & Ors v Technomen Australia NL (1990) WAR 72
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Introduction 1 This is an appeal against a judgment of Deputy Registrar Harman delivered 26 November 2004 by which the learned Deputy ordered that the plaintiff's application by chamber summons dated 16 September 2004 for summary judgment be dismissed. 2 By this appeal the plaintiff seeks an order that the order of the Deputy Registrar be set aside and in lieu thereof there be orders that there be judgment for the plaintiff for damages to be assessed plus interest at the rate of six per cent per annum from 25 March 2004 to the date of judgment. 3 The plaintiff's case is that it is the registered proprietor of land situated in Dianella upon which it operates a school. The first defendants are the owners of land which adjoins the school land and which was separated from it by a limestone retaining wall. The second defendants were engaged to construct a swimming pool on the first defendant's land and in the course of doing so the retaining wall collapsed. 4 By writ of summons issued out of this Court on 2 July 2004, the plaintiff sought to recover damages from each defendant relying upon a variety of causes of action in relation to the collapse of the retaining wall. However its application for summary judgment was limited to a claim based upon a written agreement dated 10 February 2004 ("the agreement").
The pleaded case 5 The relevant paragraphs of the statement of claim are as follows: "1. At all material times the plaintiff: 1.1 was a duly incorporated company; 1.2 was the registered proprietor of land at Lot 108 Delphine Avenue, otherwise described as Lot 108 on Plan 23832, Certificate of Title Volume 2177 Folio 317 ("the School Land"); and 1.3 operated a school on the School land.
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2. The first defendants are the owners of Lot 108 Delphine Avenue Dianella ("the Ramirez Land"), which adjoins the School Land.
3. The second defendants carry on the business of installing swimming pools under the name Five Star Pools & Spas.
4. At all material times up to 6 October 2003 there was a limestone retaining wall ('the Retaining Wall') on the School Land separating the School Land and the Ramirez Land and retaining approximately 3 metres of soil on the School Land.
5. On or before 6 October 2003 the first defendants:
6. On or about 6 October 2003, whilst the second defendants were excavating for the swimming pool, the Retaining Wall collapsed.
7. By agreement in writing made on 10 February 2004 between Australian Islamic College (North of the River) Inc as agent for the plaintiff, the first defendants and the second defendants and others, the parties agreed that their engineering representatives would determine liability for the collapse of the Retaining Wall and that the parties would be bound by that determination.
8. The engineering representatives of the parties met and agreed that 60% of the responsibility for the collapse of the Retaining Wall was attributable to the first defendants and the second defendants.
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9. The plaintiff has suffered loss and damage by reason of the collapse of the Retaining Wall.
Particulars of Loss & Damage
Engineering Costs $ 3,250 Legal Costs $ 7,980 Rectification Works $46,680 10. Despite demand the first defendants and the second defendants have failed or refused to accept responsibility in the agreed proportion of 60% or contribute 60% of the costs of repairing the Retaining Wall."
Issues raised on summary judgment application 6 Clause 5 of the agreement is in the following terms: "After completing the above works the representatives of the interested parties will have the opportunity to assess the wall. They are to determine how the repair costs are to be apportioned and the costs of those repairs by 25 February 2004 (meeting at 3.00 pm at Van der Meer's office at 41 Stuart Street, Northbridge). All parties are bound by the engineer's agreement (if they can reach agreement)." 7 The issues raised by the defendants on the summary judgment application involved the proper construction of cl 5 of the agreement and the authority of the representatives appointed by each of them to attend the meeting contemplated by cl 5. 8 The first defendants contend that what was resolved by the representatives of the parties on 25 March 2004 did not accord with the agreement in that what was required was an apportionment of responsibility between the various parties involved in the dispute and agreement as to the cost of rectification. 9 The second defendants contend in written submissions that the agreement required the representatives of the parties to determine an apportionment by 25 February 2004. As no such determination was made until 25 March 2004 the second defendants maintain they are not bound.
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10 In relation to the agency issue the first defendants contend that the extent of their representative's authority was limited and that he did not have authority to agree on a general apportionment of responsibility leaving unresolved the issue as to responsibility between the first and second defendants.
11 The second defendants contend that their representative did not have authority to reach agreement regarding apportionment after 25 February 2004. It is said the authority was specific and not general and further that there was no conduct or representation on the part of the second defendants by which they held out their representative as having authority greater than that expressed in cl 5 of the agreement of 10 February 2004. Further, it was contended that there was no basis for alleging any implied authority. 12 The plaintiff's submissions relevantly were: "4. The second defendants appear to be saying that their representative acted outside the authority given and after the time for the performance had lapsed. 5. Having armed their representatives with ostensible or apparent authority to act on their behalf pursuant to the agreement the defendants are bound by their agent's actions: See Bowstead & Reynolds on Agency 16th Edition at 8-013 and Laws of Australia 8.1 at [32]. 6. To the extent the date for the representatives to make the determination was mandatory, this was waived by the parties in that all of them have allowed their representatives to proceed and make a decision on a later date: See Carter on Contract at [07-200]." 13 The issues as to the extent of ostensible or apparent authority and waiver should be fully considered and determined at trial.
Principles on summary judgment application 14 Order 14, r 1 of the Rules of the Supreme Court provides that where a statement of claim has been served on a defendant and the defendant has entered an appearance, the plaintiff may, on the ground that the defendant has no defence to a claim included in the writ, or has no defence to such claim or part except as to the amount of any damages claimed, within 21 days after appearance, or at any later time by leave of the Court, apply
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to the Court for judgment against the defendant. The application for summary judgment was out of time as against the second defendants. The delay in making application was small and I would in the circumstances extend the time to enable the application to be made. 15 The power to order summary judgment should be exercised with great care and should never be exercised unless it is clear there is no real question to be tried: Fancourt & Anor v Mercantile Credits Ltd(1983) 154 CLR 87 at 99. 16 The plaintiff carries the burden of persuading the Court that the claim is a good one, that there is no defence to it, that leave to defend should not be granted, and that judgment should be given for the plaintiff. The party showing cause against the application assumes an overall evidentiary burden but the overall legal burden of persuasion remains on the applicant: Morgan v Pallister[2004] WASC 188 at par 4.
Disposition of appeal 17 The issues raised by the defendants require examination of all of the facts and circumstances at a trial. In my view there are real questions to be tried on the issues raised of construction of the agreement and authority of the representatives of the defendants. Accordingly the application for summary judgment should be dismissed.
Conclusion 18 The appeal should be dismissed. |