Ardizzone v Valentino Nominees Pty Ltd
[2015] WADC 95
•10 AUGUST 2015
ARDIZZONE -v- VALENTINO NOMINEES PTY LTD [2015] WADC 95
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WADC 95 | |
| Case No: | CIV:987/2015 | 5 JUNE 2015 | |
| Coram: | REGISTRAR KINGSLEY | 10/08/15 | |
| PERTH | |||
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Plaintiff pay defendant costs of the O 14 application | ||
| PDF Version |
| Parties: | JOSEPH ANTONINO ARDIZZONE VALENTINO NOMINEES PTY LTD JAMES COLBY PAULA CHARMAINE COLBY CRI PROPERTY PTY LTD WALTER LA ROCCA |
Catchwords: | Practice Application by defendants for costs arising from an O 14 Rules of the Supreme Court application |
Legislation: | Nil |
Case References: | BP Refinery (Western Port) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1984) 149 CLR 337 Morgan v Pallister [2004] WASC 188 Owston Nominees No 2 Pty Ltd v Clambake Pty Ltd [2011] WASCA 76 Ridgepoint Corp Pty Ltd v McCallum Donovan Sweeney (A Firm) [2011] WASC 167 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
VALENTINO NOMINEES PTY LTD
First Defendant
JAMES COLBY
First Named Second Defendant
PAULA CHARMAINE COLBY
Second Named Second Defendant
CRI PROPERTY PTY LTD
Third Defendant
WALTER LA ROCCA
Fourth Defendant
Catchwords:
Practice - Application by defendants for costs arising from an O 14 Rules of the Supreme Court application
Legislation:
Nil
Result:
Plaintiff pay defendant costs of the O 14 application
Representation:
Counsel:
Plaintiff : Mr Gallagher
First Defendant : Mr Fletcher
First Named Second Defendant : Mr Fletcher
Second Named Second Defendant : Mr Fletcher
Third Defendant : Ms Derham
Fourth Defendant : Ms Derham
Solicitors:
Plaintiff : Roe Legal Services
First Defendant : Fletcher Law
First Named Second Defendant : Fletcher Law
Second Named Second Defendant : Fletcher Law
Third Defendant : DLA Piper
Fourth Defendant : DLA Piper
Case(s) referred to in judgment(s):
BP Refinery (Western Port) Pty Ltd v Shire of Hastings (1977) 180 CLR 266
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1984) 149 CLR 337
Morgan v Pallister [2004] WASC 188
Owston Nominees No 2 Pty Ltd v Clambake Pty Ltd [2011] WASCA 76
Ridgepoint Corp Pty Ltd v McCallum Donovan Sweeney (A Firm) [2011] WASC 167
1 REGISTRAR KINGSLEY: The plaintiff has brought proceedings against the first defendant, as registered proprietor of land in Kenwick (the Kenwick property), the second defendants as directors of the first defendant, the third defendant as the real estate agent company engaged by the second defendant to market the Kenwick property, and the fourth defendant as the real estate agent employed by the third defendant.
2 The plaintiff essentially raises three causes of action: the first pleads that there were implied representations resulting from an email dated 29 November 2012, and in a fact sheet in relation to the Kenwick property that there was no restriction on the use of the whole, or substantially the whole, of the Kenwick property. The second cause of action is by way of breach of contract: that, pursuant to Clause 9.1 of the 2011 Joint Form of General For The Sale of Land (the General Conditions), the first defendant warranted to the plaintiff there were no outstanding demands requisitions orders or requirements relating to the Kenwick property made by any government or statutory body which remained current at the date of settlement under the contract. The third cause of action is one of misleading and deceptive conduct on the part of the defendants.
3 The plaintiff pleads that, on 3 December 2012, the West Australian Department of Environment and Conservation sent a letter to the first defendant and second defendants advising that a substantial area of vegetation on the Kenwick property had been classified as a threatened ecological community (TEC). The plaintiff pleads that a TEC has a special level of legal protection under the Environmental Protection Act 1988.
4 On 4 December 2012 the plaintiff and first defendant entered into a Contract for the purchase of the property. The Contract incorporated the General Conditions. The plaintiff pleads that, notwithstanding knowledge by the second defendant by 16 January 2012, and by the fourth defendant by 13 February 2012, none of the defendants disclosed the TEC classification to the plaintiff.
5 The writ with a statement of claim was filed on 23 March 2015 and the first and second defendants filed a defence on 17 April 2015. The third and fourth defendants filed appearances on 8 April and 9 April respectively.
6 The first and second defendants, in their defence, admit that a letter dated 3 December 2012 from the Department of Environment was, on a date between 4 December 2012 and 16 January 2013, received by the first defendant. The first and second defendants specifically plead that the warranty pleaded by the plaintiff is void for uncertainty. The first and second defendants plead that, on its terms, the warranty was incapable of being complied with after the contract date in relation to any matter arising after that date. Further, the first and second defendants plead that notification of a TEC on the property falls outside the scope of the warranty as it is not an order, requisition or requirement, but merely a notification.
7 As for the misleading and deceptive claim the first and second defendants in their defence simply deny those paragraphs of the statement of claim.
8 On 23 April 2015 the plaintiff brought an application for summary judgment pursuant to O 14 Rules of the Supreme Court 1971. On 24 April 2015, in a commercial list directions hearing, orders were made for the defendants to serve any affidavit in opposition, the plaintiff to serve any affidavits in response and the filing of submissions by the defendants. The matter was listed for a special appointment, before a registrar in chambers, on 10 June 2015.
9 By letter dated 22 May 2015 to the court the plaintiff requested that the plaintiff's summary judgement application be listed for directions and attached a minute of proposed orders dated 22 May 2015. In essence the plaintiff sought orders that the summary judgment application be dismissed, the special appointment listed 10 June be vacated and the costs of the summary judgment application be in the cause. The minute went on to seek orders in relation to pleadings, discovery and inspection and expert evidence.
10 Pursuant to the plaintiff's request the matter was listed for a directions hearing on 5 June 2015. At that time formal orders were made dismissing the summary judgment application and orders made in relation to progressing the action by way of pleadings, third party notice, discovery and inspection and expert evidence. A dispute arose, principally by the second defendants, but supported by the third and fourth defendants, on the issue of costs: that the costs of the summary judgment application should be the defendants. Counsel for the second defendants submitted that this application that should not have been brought. Counsel for the second defendants submitted that on the plaintiff's affidavit, and on the defence of the first and second defendants, serious issues arose making the application for summary judgment inappropriate.
11 The plaintiff in his affidavit sworn 23 April 2015 in support of the summary judgment application deposes that on 29 November 2012 he received an email which included an advertising brochure for the Kenwick property. There is, obviously, no mention of the TEC in the brochure. The plaintiff inspected the property in or around the second or third of December 2012 and, whilst he cannot recall the precise date, is certain the inspection was after the execution of the contract. The plaintiff deposes that shortly after settlement he attended the property and was told by the fourth defendant that there was some sort of easement on the trees and that it was nothing for him to worry about. The plaintiff deposes he did not respond to these comments by the fourth defendant.
12 By way of conferral on 14 April 2015 the plaintiff's solicitors advised the defendants that the solicitors had instructions to apply for summary judgment and enquired whether there was any reason why the plaintiff should not proceed with the O 14 application. On 21 April in a file note attached to the affidavit of Alexandra Derham sworn 5 June 2015, Ms Derham notes that there was a telephone conversation between herself and the plaintiff's solicitor. The plaintiff's solicitor stated that it was clear on the pleadings that the defendants were liable to the plaintiff as pleaded in the statement of claim. Ms Derham notes that it was the third and fourth defendants' solicitors' view that there were matters for evidence from the fourth defendant. Ms Derham noted that the third and fourth defendants disputed that there was misleading and deceptive conduct and that in any event the claim was properly against the first and second defendants for unjust enrichment if anything.
13 The issue is whether, on receipt of the defence, and considering the three causes of action the plaintiff should not have brought the application for summary judgment, or whether it was proper to bring the application and, having seen the affidavits in response, it was then appropriate to concede that a defence lay.
14 On applications pursuant to O 14 the burden of persuasion that the claim is a good one and that there is no defence to it lies with the plaintiff. 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. Whilst the summary judgment procedure is not confined to cases which are immediately plain and obvious the fact that a transaction is intricate does not disentitle the plaintiff to relief in a clear case (Morgan v Pallister [2004] WASC 188).
15 In relation to the cause of action based on the implied representation, it is for the plaintiff to plead a proper cause: that the term sought to be implied was needed in order to make the agreement work, or in order to avoid an unworkable situation (see BP Refinery (Western Port) Pty Ltd v Shire of Hastings (1977) 180 CLR 266; Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1984) 149 CLR 337). In his statement of claim the plaintiff has not pleaded any basis for a court to conclude that a term of the contract should be implied.
16 In relation to the cause under the warranty the plaintiff pleads the first defendant had warranted that the first defendant did not know of any demand, requisition, order or requirement relating to the property which had been made by any governmental or statutory body and which remained current as at the date of settlement under the contract. The material fact giving rise to the warranty is not pleaded but arises from Clause 9.1 of the General Conditions. The first and second defendants deny any breach of warranty, pleading it is void for uncertainty as the warranty was incapable of being complied with. The first defendant, in particulars says the first defendant did not receive the TEC until after the contract date and was therefore incapable of disclosing the TEC before that date.
17 The warranty contained in Clause 9.1 General Conditions is that, at the Contract Date and as at the earlier of possession and Settlement the Seller does not know of any demand, order, requisition or requirement relating to the Property which has been made by an Authority and remains current. The Contract Date is defined as the date the date on which the last party to sign the Contract signs it. In this case the Contract is signed on 4 December 2012 by the Directors of the First Defendant. Settlement is defined as the date of completion of the sale and purchase of the property. Settlement in this case occurred on 22 March 2013.
18 On the defence filed 17 April 201 there is an arguable issue as to the state of knowledge of the First Defendant, through its Directors, as to whether the First Defendant knew of the TEC as at the date of the Contract. However, contrary to the plea at 7.1 of the First and Second defendant's defence, I am of the opinion the Clause 9.1 warranty is a continuing warranty to the date of Settlement. The First defendant pleads that it was aware of the TEC notice by at least 16 January 2013. Having regard to the warranty being a continuing one to the date of settlement, it was not inappropriate for the Plaintiff to bring the application under this cause.
19 The First and Second defendant's defence also raises the question as to whether the TEC notice is a notice that falls within the Clause 9.1 warranty. In my opinion, the question of interpretation as to whether the TEC is a notice falling within the warranty is one that could be properly argued on a summary judgement application.
20 Turning to the cause of misleading and deceptive conduct, the authorities state that, in a cause of this nature, the surrounding context must be examined. That contextual enquiry goes not only to the facts but also inferences that may be drawn from those facts, (see Ridgepoint Corp Pty Ltd v McCallum Donovan Sweeney (A Firm) [2011] WASC 167 at [50] and Owston Nominees No 2 Pty Ltd v Clambake Pty Ltd [2011] WASCA 76 at [62]).
21 The authorities go on to say that where such an examination of the contextual surrounding is required, then that enquiry could not safely be undertaken within the framework of a summary judgment application. In my opinion it would be inappropriate, in this action, to have brought the application in relation to the misleading and deceptive conduct cause.
22 In conclusion the summary judgement application was one, on reflection, that should not have been brought. Whilst there may have been an argument for summary determination under the breach of warranty cause, the cause pursuant to the implied representation was bound to fail for lack of a proper pleading, and the misleading and deceptive conduct cause was bound to trial so that all the evidence could be heard.
23 That being the case the plaintiff is to pay the defendants costs on the application, such costs to be taxed in any event.
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