Ansearch Ltd v Wavtech Pty Ltd

Case [2006] WASC 184


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



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2006] WASC 184
Case No:CIV:1123/200618 JULY & 10 AUGUST 2006
Coram:MASTER NEWNES30/08/06
14Judgment Part:1 of 1
Result: Judgment refused
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…

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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

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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