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Ansearch Ltd v Wavtech Pty Ltd

Ansearch Ltd v Wavtech Pty Ltd

Case [2006] WASC 184 30 August 2006

Civil Litigation & Procedure

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ANSEARCH LTD -v- WAVTECH PTY LTD [2006] WASC 184

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WASC 184
Case No:	CIV:1123/2006	Heard:	18 JULY & 10 AUGUST 2006
Coram:	MASTER NEWNES	Delivered:	30/08/06
No of pages:	14	Judgment Part:	1 of 1
Result:	Judgment refused
Category:	B
PDF Version

Parties:	ANSEARCH LTD WAVTECH PTY LTD
Catchwords:	Practice and procedure Application by plaintiff for summary judgment Contract for sale of shares Whether purchase price was debt due and payable by defendant separately from transfer of shares to it Whether contract subject to finance Turns on own facts
Legislation:	Nil
Case References:	Australian Can Co Pty Ltd v Levin & Co Pty Ltd [1947] VLR 332 Cordinup Resorts Pty Ltd v Terana Holdings Pty Ltd (1997) 143 FLR 18 Eng Mee Yong v Letchumanan [1980] AC 331 Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 Harry Davies & Co Pty Ltd v East [1925] VLR 681 McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457 Reynolds v Fury [1921] VLR 14 Ruddenklau v Charlesworth [1925] NZLR 161 Scaffidi Nominees Pty Ltd & Anor v Buswell, unreported; FCt SCt of WA; Library No 960588; 11 October 1996 Sunbird Plaza Pty Ltd v Maloney (1988) 166 CLR 245 ANZ Executors & Trustees Ltd v Humes Ltd [1990] VR 615 Clyde & Baker v Tang (1906) 6 SR (NSW) Coulls v Bagot's Executor & Trustee Co Ltd (1967) 119 CLR 460 Evans v Bartlam [1937] 2 All ER 646 Hyde v Wrench (1840) 49 ER 132 Jacobs v Booth's Distillery Co (1901) 85 LT 262 Lang v Morrison & Co Ltd (1911) 13 CLR 1 Meehan v Jones (1982) 149 CLR 571 Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109 Newcombe v Chapple (1985) 3 BPR 9391 Pricom Pty Ltd v Sgarioto [1994] ATPR 42,730 White v Johnston (1886) 8 ALT 53

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : ANSEARCH LTD -v- WAVTECH PTY LTD [2006] WASC 184 CORAM : MASTER NEWNES HEARD : 18 JULY & 10 AUGUST 2006 DELIVERED : 30 AUGUST 2006 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 - Contract for sale of shares - Whether purchase price was debt due and payable by defendant separately from transfer of shares to it - Whether contract subject to finance - Turns on own facts

Legislation:

Nil

Result:

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):

Australian Can Co Pty Ltd v Levin & Co Pty Ltd [1947] VLR 332
Cordinup Resorts Pty Ltd v Terana Holdings Pty Ltd (1997) 143 FLR 18
Eng Mee Yong v Letchumanan [1980] AC 331
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Harry Davies & Co Pty…

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 [2006] WASC 184
Case: [2006] WASC 184
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Western Australia, Ansearch Ltd sought summary judgment against Wavtech Pty Ltd for the sum of $800,000, plus interest, claiming that Wavtech failed to settle a contract for the sale of 650 shares in Optum ES Pty Ltd. The contract, dated 25 July 2005, stipulated that payment was due within 30 days of acceptance, with the shares to be transferred upon payment. Wavtech argued that the contract was conditional on obtaining finance, which it failed to secure. The court examined whether the purchase price became a debt due and payable by Wavtech upon the settlement date and whether the contract was indeed contingent on Wavtech obtaining finance. The court found that the contract did not explicitly state that the payment was conditional on obtaining finance, and Wavtech's execution of a subsequent agreement with recitals denying such a condition undermined its defence. However, the court held that the payment of $800,000 and the transfer of shares were likely intended to occur concurrently, and therefore, the sum was not a debt due and payable by Wavtech to Ansearch. Consequently, Ansearch's claim for specific performance or damages, rather than a debt, was the appropriate remedy.

The court dismissed the application for summary judgment and invited the parties to address the appropriate course of action and the issue of costs.

Orders