ANSEARCH LTD -v- WAVTECH PTY LTD [2007] WASC 59

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WASC 59
Case No:	CIV:1123/2006	Heard:	24 JANUARY & 12 MARCH 2007
Coram:	MASTER NEWNES	Delivered:	15/03/07
No of pages:	8	Judgment Part:	1 of 1
Result:	Application for summary judgment refused
Category:	B
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Parties:	ANSEARCH LTD WAVTECH PTY LTD
Catchwords:	Practice and procedure Application by plaintiff for summary judgment for specific performance Whether triable issue Turns on own facts
Legislation:	Nil
Case References:	Ansearch Ltd v Wavtech Pty Ltd [2006] WASC 184 Australian Can Co Pty Ltd v Levin & Co Pty Ltd [1947] VLR 332 Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 Foran v Wight (1989) 168 CLR 385

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : ANSEARCH LTD -v- WAVTECH PTY LTD [2007] WASC 59 CORAM : MASTER NEWNES HEARD : 24 JANUARY & 12 MARCH 2007 DELIVERED : 16 MARCH 2007 FILE NO/S : CIV 1123 of 2006 BETWEEN : ANSEARCH LTD

Plaintiff

AND

WAVTECH PTY LTD

Defendant

Catchwords:

Practice and procedure - Application by plaintiff for summary judgment for specific performance - Whether triable issue - Turns on own facts

Legislation:

Nil

Result:

Application for summary judgment refused

(Page 2)

Category: B

Representation:

Counsel:

Plaintiff : Mr H R Robinson

Defendant : Mr M Levitan

Solicitors:

Plaintiff : Haydn Robinson

Defendant : Melvyn Levitan

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

Ansearch Ltd v Wavtech Pty Ltd [2006] WASC 184
Australian Can Co Pty Ltd v Levin & Co Pty Ltd [1947] VLR 332
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Foran v Wight (1989) 168 CLR 385

(Page 3)

1 MASTER NEWNES: This is an application by the plaintiff for summary judgment for an order for the specific performance of an agreement, dated 27 July 2005, made between the plaintiff and the defendant.

The background

2 The matter previously came before me on the plaintiff's application for summary judgment for the sum of $800,000, being the purchase price of the shares the defendant agreed to purchase from the plaintiff under the agreement: see Ansearch Ltd v Wavtech Pty Ltd [2006] WASC 184. On that application I found that, as the purchase price was only payable upon delivery of a signed, registrable transfer of the shares, and as that had not occurred, the purchase price had not become payable.

3 The plaintiff has now brought an application to amend the writ and statement of claim to seek specific performance of the defendant's obligations under the contract and for judgment for specific performance.

4 It is necessary for the purposes of the present application to canvass only a limited part of the evidence.

5 On 4 April 2003, the plaintiff (then known as Optum Health Ltd), the defendant and Optum ES Pty Ltd ("Optum ES") entered into an agreement (the "Shareholders' Agreement") pursuant to which the plaintiff and the defendant agreed, among other things, to subscribe for 800 shares…

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.

Continue reading Ansearch Ltd v Wavtech Pty Ltd

Details

AGLC: Ansearch Ltd v Wavtech Pty Ltd [2007] WASC 59
Case: [2007] WASC 59
Decision Date: 16 MARCH 2007

CaseChat Overview and Summary

Ansearch Ltd sought summary judgment against Wavtech Pty Ltd for specific performance of a contract. The case was heard in the Supreme Court of New South Wales. The plaintiff contended that the defendant's obligations under the contract were so clear that the case should be decided without the need for a full trial. The defendant opposed the application, arguing that there were triable issues of fact that required a hearing.

The court was required to determine whether the plaintiff's application for summary judgment was appropriate, focusing on whether there were any genuine issues of fact that needed to be resolved by a trial. The court examined the contract and the arguments presented by both parties, considering whether the case could be decided based on the facts as they stood or if there were issues that could only be resolved at a trial. The court had to balance the plaintiff's right to a quick resolution against the defendant's right to have their case heard.

The court found that there were triable issues of fact that could not be resolved on the basis of the documents alone. The court held that the defendant had raised sufficient evidence to demonstrate that there were genuine issues that needed to be resolved by a trial. Consequently, the court refused the plaintiff's application for summary judgment. The court held that the case was not suitable for summary determination and that it should proceed to a full hearing to determine the merits of the dispute.

No further orders were made by the court in relation to the application for summary judgment. The case would continue to be heard on the basis of the substantive issues between the parties.

Orders

Orders of the court

Application for summary judgment 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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