Atalanta Investments Pty Ltd v Windsor Knight Pty Ltd - [2025] WASC 169

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   ATALANTA INVESTMENTS PTY LTD -v- WINDSOR KNIGHT PTY LTD [2025] WASC 169
CORAM:   MASTER RUSSELL
HEARD:   1 MAY 2024
DELIVERED          :   9 MAY 2025
FILE NO/S:   CIV 2143 of 2023
BETWEEN:   ATALANTA INVESTMENTS PTY LTD (ACN 096 595 612)
Plaintiff
AND
WINDSOR KNIGHT PTY LTD (ACN 009 436 962)
Defendant

Catchwords:

Practice and procedure - Summary judgment - Claim to recover debt - No express terms as to payment - Terms to be implied or inferred objectively - Factual dispute as to communications between the parties and circumstances in which agreement made - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 14, O 14 r 1(1), O 14 r 1(2)

Result:

Leave to bring application for summary judgment granted
Application for summary judgment dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	Mr R Craig KC
Defendant	:	Mr J Sippe

Solicitors:

Plaintiff	:	Hotchkin Hanly
Defendant	:	Iffla Wade

Cases referred to in decision(s):

Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552
Argyll Park Thoroughbreds Pty Ltd v Glen Pacific Pty Ltd (recr and mgr appointed) (1993) 11 ASCR 1
Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279
Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256
Bell Group Ltd (in liq) v Westpac Banking Corp [No 9] (2008) 39 WAR 1; (2008) 70 ASCR 1; [2008] WASC 239
Byrne v Australian Airlines Ltd (1995) 185 CLR 410
Central City Pty Ltd v Montevento Holdings Pty Ltd [2011] WASCA 5
Deputy Commissioner of Taxation v Lafferty [2017] WASC 257
Donau Pty Ltd v ASC AWD Shipbuilder Pty Ltd [2019] NSWCA 185
Dynamic Window Systems Pty Ltd v Robinson [2016] VSC 152
English v Vantage Holdings Group Pty Ltd [2021] WASCA 47
Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87
Fazio v Fazio [2012] WASCA 72
Fels v Rural Bank [2020] WASCA 151
GHM Nominees Pty Ltd v Wallace Jackson Pty Ltd [2022] VSCA 230; 68 VR 377
Hawes v Dean [2014] NSWCA 380
Hawkins v Clayton (1988) 164 CLR 539
Hazart v Rademaker (1993) 11 WAR 26
Morgan v Pallister [2004] WASC 188
Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109
Palaniappan v Westpac Banking Corporation [2016] WASCA 72
Re Golden Robot Records International Pty Ltd & Ors [2021] NSWSC 1146
Reid v Moreland Timber Co Pty Ltd (1946) 73 CLR 1
Shilkin v Jagem Pty Ltd [2013] WASC 113
Siah v Wong [2021] WASC 19
SMEC Australia Pty Ltd v Valentine Falls Estate Pty Ltd [2011] WASCA138
Spencer v The Commonwealth [2010] HCA 28; (2010) 241 CLR 118
Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14
Universal Greening Pty Ltd v Sabine (1999) 17 ACLC 880; [1999] FCA 529
Vantage Holdings Group Pty Ltd v Donnelly [No 4] [2019] WASC 398
Wallingford v Mutual Society (1880) 5 App Cas 685
Westpac Banking Corporation v Anderson [2017] WASC 106

MASTER RUSSELL:

Introduction

The plaintiff, Atalanta Investments Pty Ltd, and the defendant, Windsor Knight Pty Ltd, were engaged in property development and undertook development projects together over many years.
The plaintiff commenced this proceeding against the defendant claiming that the defendant owes it $1,244,812 together with interest in relation to a debt arising out of a development in Port Pirie, South Australia.
The plaintiff says there is no defence to its claim and applies for summary judgment against the defendant, pursuant to O 14 r 1 of the Rules of the Supreme Court 1971 (WA) (RSC) (Application).
The defendant opposes the Application, which was filed one day outside the 21-day period within which an application is to be made after an appearance is entered pursuant to O 14 r 1(1). An oral application was made for leave to bring the Application out of time.
There is no prejudice to the defendant by the short delay in bringing the Application and the defendant took no issue with it. Leave should be and is granted to bring the Application, the time for which is extended to the date of filing.
Having considered the evidence adduced and the submissions made by each of the parties, for the reasons that follow, I am not satisfied this is a clear case in which summary judgment should be granted. The Application should be and is dismissed.

The plaintiff's claim

The plaintiff commenced this proceeding by writ of summons filed on 6 October 2023 claiming payment of $1,244,812 in respect of a debt alleged to be owed to it by the defendant, and which the plaintiff says the defendant has acknowledged it is liable to repay.
An amended statement of claim was filed on 29 April 2024 by which it is alleged, in summary:
1.At all material times:
(a)the plaintiff was and is the holder of 45% of the issued shares in Port Pirie Project Pty Ltd (Company);[1] and
(b)the defendant was and is the holder of 55% of the issued shares in the Company.[2]
2.Between September 2005 and November 2021, the parties caused the Company to undertake a development in Port Pirie, South Australia (Port Pirie Development).[3]
3.As at 29 November 2021, the Company owed the plaintiff $1,944,000, which the plaintiff and Seafocus Holdings Pty Ltd (Seafocus) had borrowed from the Commonwealth Bank of Australia (CBA), and the plaintiff had in turn loaned to the Company for the purpose of the Port Pirie Development (CBA Loan).[4]
4.The defendant has agreed and acknowledged that it owes the plaintiff $1,244,812 plus interest (payable by the plaintiff to CBA), as its share of the loan for the Port Pirie Development (Debt).[5]
5.The agreement and acknowledgment of the Debt is alleged to arise from an email sent by Tarryn Stain of the defendant to Simon Strawbridge on 30 March 2022 (30 March 2022 Email),[6] and to be recorded in a minute of the Company dated 30 March 2022 signed by Mr Pearce and Mr Brown (30 March 2022 Minute).[7]
6.The plaintiff also relies upon the defendant's payment of invoices issued by the plaintiff from 29 March 2022 to 31 October 2023 for interest that had accrued on the Debt under the CBA Loan, as particularised in the amended statement of claim.[8]
7.It is a term implied in law and/or fact that the Debt was repayable immediately, alternatively on demand or within a reasonable time of repayment being demanded or from the sale of the Development.[9]
8.Despite demand being made of the defendant by the plaintiff for repayment of the Debt on 17 August 2023,[10] the defendant has refused to pay the Debt to the plaintiff.[11]
[1] Amended statement of claim [1(b)].
[2] Amended statement of claim [2(b)].
[3] Amended statement of claim [3]. The defined term Port Pirie Development is used for ease of reference in these reasons. It is defined as 'Development' in the amended statement of claim but as the 'Port Pirie Development' in the affidavits and submissions relied upon by the parties.
[4] Amended statement of claim [4].
[5] Amended statement of claim [5].
[6] Amended statement of claim [5(a)]. The defined term 30 March 2022 Email is used for ease of reference in these reasons. It is not used in the amended statement of claim.
[7] Amended statement of claim [5(b)]. The defined term 30 March 2022 Minute is used for ease of reference in these reasons. It is not used in the amended statement of claim.
[8] Amended statement of claim [5(c)], [6], [7].
[9] Amended statement of claim [8].
[10] Amended statement of claim [9].
[11] Amended statement of claim [10].
The plaintiff claims payment of the Debt in the amount of $1,244,812 together with interest on the Debt at the rate specified in the CBA Loan, alternatively, at the rate of 6% per annum pursuant to s 32 of the Supreme Court Act 1935 (WA).

Agreed facts

The parties have agreed, for the purpose of the Application, that:[12]
1.Of the monies which the plaintiff and Seafocus borrowed from CBA, the amount of $1,244,812 is still owing to CBA and the loan from CBA has not been discharged.
2.Since 7 November 2023, the plaintiff has continued to issue monthly invoices to the defendant in respect of the interest and fees that have accrued on the amount of $1,244, 812 owed by the plaintiff and Seafocus to CBA.
3.Between 7 November 2023 and 1 May 2024, the defendant continued to pay the invoices issued to it by the plaintiff.
[12] Statement of agreed facts filed on 6 June 2024.

Materials relied on by the parties

In support of the Application, the plaintiff relies on:
(a)an affidavit of Bruce Richard Brown sworn on 7 November 2023 (Brown Affidavit);
(b)an affidavit of Bruce Richard Brown sworn on 4 April 2024 in response to the affidavit sworn on behalf of the defendant (Brown Reply Affidavit); and
(c)an amended outline of submissions filed on 30 April 2024.[13]
[13] The only amendment to the outline of submissions filed on 4 April 2024 is to the paragraph numbering.
In opposition to the Application, the defendant relies on an affidavit of Gregory John Pearce sworn on 29 February 2024 (Pearce Affidavit) and an outline of submissions filed on 23 April 2024.

Objections to evidence

Each party filed a schedule of objections to the affidavits relied upon by the other party. By the time of the hearing, and following conferral, not all of the objections were pressed and some were conceded.
Ultimately, the Brown Affidavit was read except for the words objected to in paragraph 35. While no formal objection was raised, counsel for the defendant observed that in several paragraphs of the Brown Affidavit Mr Brown summarises and gives commentary on the content of documents attached to his affidavit.
It was accepted on behalf of the plaintiff that where there are summaries of or commentary on documents attached to Mr Brown's affidavits, such is not admissible and the court is to have regard only to the document itself. This applies equally to any summaries of or commentary on documents by Mr Pearce in his affidavit.
The Pearce Affidavit was read except for:
(a)the last two lines of paragraph 12 and the final column of the table included in paragraph 12 relating to the defendant's calculation of Mr Brown's share of profits generated by the project;
(b)the sentence in paragraph 38, 'I understood that … for tax purposes'; and
(c)the whole of paragraph 47.
There was an objection to the whole of paragraph 11 of the Pearce Affidavit (on the grounds of relevance and that parts of it are vague and conclusionary), in which Mr Pearce sets out in general terms how he and Mr Brown have conducted the developments they have undertaken together. Objection was also taken to parts of paragraphs 28 and 32 in which Mr Pearce expresses his understanding based on earlier emails and past practice, which the defendant submitted was irrelevant to the matters for determination.
In each case, counsel for the defendant confirmed that the defendant does not seek to rely on those matters as evidence of the objective facts of the agreement and its terms. It was submitted on behalf of the defendant that the evidence of Mr Pearce's understanding and how he and Mr Brown conducted their business relationship is relevant to the circumstances in which the alleged agreement was made, particularly where the plaintiff's claim is not based on a formal written document which sets out the alleged agreement and its terms. Rather, the plaintiff invites the court to make findings of fact and infer that there is an agreement between the parties in the terms alleged.
It was proposed by both counsel, and I agreed, that I would determine the objections to the Pearce Affidavit after hearing the oral argument in relation to the Application.
As is accepted by the defendant, the parts of paragraphs 28 and 32 of the Pearce Affidavit, in which Mr Pearce expresses his subjective understanding, are not relevant for the purpose of construing the terms of any agreement between the parties and is inadmissible for that purpose. Nor is it admissible for the purpose of determining whether an agreement was reached and a contract has been concluded or is to be inferred from the acts and conduct of the parties or their words (or absence of them). That is also to be assessed objectively.[14]
[14] Fazio v Fazio[2012] WASCA 72 [188] - [191], and the authorities referred to (Murphy JA), [13], [14] (Pullin and Newnes JJA agreeing).
I have not taken account of the second sentence onwards of paragraph 28 or the second sentence of paragraph 32 in my determination of the Application.
Although parts of Mr Pearce's evidence at paragraph 11 is in broad and conclusionary terms, which limits the weight to be given to it, it is in my view relevant. It gives context to the nature of the dealings between the parties, the circumstances in which they operated, and the commercial background and surrounding circumstances known to them. Such evidence is relevant and admissible for the purpose of determining whether there was an agreement, and its terms. I address this evidence in my consideration of the evidence later in these reasons.

Factual background

The following uncontroversial factual background is derived from the affidavits filed.
Mr Brown is one of two directors and shareholders of the plaintiff company. The other director is Simon Strawbridge, who was appointed as a director of the plaintiff in May 2011. The other shareholder is Mr Brown's wife, Alison Brown. Mr and Mrs Brown each hold 100 of the 200 issued shares in the plaintiff, which they incorporated for the purpose of investing in property developments.[15]
[15] Brown Affidavit [5], 'BRB-1', [7].
Mr Pearce is the sole director of the defendant company and sole holder of its two issued shares.[16] He is a commercial property developer specialising in developing shopping centres, including for major supermarkets and other retailers.[17]
[16] Brown Affidavit [6], 'BRB-2'; Pearce Affidavit [1].
[17] Pearce Affidavit [2].
Mr Brown and Mr Pearce met in the early 2000s and have since been involved, through companies they own or control, including the plaintiff and the defendant, in undertaking property developments together.[18]
[18] Brown Affidavit [8]; Pearce Affidavit [8], [10], [12] as read.
The Company, previously named Albany Projects Pty Ltd, was incorporated by the plaintiff and the defendant on 6 August 2003 for the purpose of developing land in Albany. The defendant held (and continues to hold) 55 of the 100 issued shares in the Company and Atalanta held (and continues to hold) 45 shares. The Albany development did not ultimately proceed and the Company was not used for that purpose. It was renamed Port Pirie Project Pty Ltd on 30 September 2005 and was subsequently deregistered on 11 June 2023.[19]
[19] Brown Affidavit [12] - [13], 'BRB-3'; Pearce Affidavit [14].
In about September 2005, there were discussions between Mr Pearce and Mr Brown about developing a commercial shopping centre in Port Pirie, South Australia with Target as the main tenant.[20]
[20] Brown Affidavit [10]; Pearce Affidavit [13].
In about December 2005, the Company purchased land located at Florence Street in Port Pirie for the purpose of developing the commercial shopping centre (the Port Pirie Development).[21] All funding for the construction of the Port Pirie Development was provided by the plaintiff.[22]
[21] Pearce Affidavit [15], 'GJP-1'.
[22] Pearce Affidavit [16].
Construction of the Port Pirie Development was completed in about April 2007.[23] Mr Pearce deposes that Target entered into a long‑term lease occupying 60% of the lettable area of the centre and commenced trading in April 2007. He states that, together with one other tenant, 89% of the lettable space was leased by the time of the opening of the development.[24]
[23] Pearce Affidavit [17]; Brown Reply Affidavit [6(a)].
[24] Pearce Affidavit [17].
There were difficulties leasing the remaining lettable space in the completed Port Pirie Development and in achieving the expected rental returns. As such, in Mr Brown's and Mr Pearce's view, it was not viable to sell the development after construction of the Port Pirie Development was complete.[25] Efforts were made to sell the centre in 2010 and continued until 2017, without success.[26]
[25] Brown Affidavit [14]; Pearce Affidavit [18] - [19].
[26] Pearce Affidavit [20].
In about August 2010, the plaintiff and Seafocus arranged a bank facility (the CBA Loan), which was used to fund the Port Pirie Development.[27]
[27] Brown Affidavit [15], Pearce Affidavit [22]; Brown Reply Affidavit [6(b)], 'BRB-41'.
The land and buildings developed in the Port Pirie Development were ultimately sold for a loss on 15 November 2021.[28] Mr Brown deposes that, upon receipt of the proceeds of sale, the amount of $1,900,000 was paid to CBA in partial repayment of the CBA Loan, leaving an unpaid balance under the CBA Loan of $1,944,000.[29]
[28] Brown Affidavit [23], 'BRB-10'; Pearce Affidavit [29].
[29] Brown Affidavit [24].
For the purpose of the Application, the parties have agreed that, as at 6 June 2024, the principal amount of $1,244,812 was owing to CBA and the CBA Loan had not been discharged.[30]
[30] Statement of agreed facts [1].
From 29 March 2022, the plaintiff has issued monthly invoices to the defendant in relation to interest that has accrued on the CBA Loan.[31] The defendant has paid the invoices issued to it by the plaintiff.[32]
[31] Brown Affidavit [31], 'BRB-17' to 'BRB-37'; Statement of agreed facts [2].
[32] Brown Affidavit [32], 'BRB-38'; Pearce Affidavit [34]; Statement of agreed facts [3].
On 17 August 2023, the plaintiff's solicitors sent a letter to the defendant (addressed to Mr Pearce) demanding repayment of the Debt in the amount of $1,244,812 in full, together with interest, within 21 days.[33]
[33] Brown Affidavit [33]; 'BRB-39'.
On 25 August 2023, the defendant's solicitors sent a letter to the plaintiff's solicitors in response stating, in effect and amongst other things, that the defendant denied that any amount was currently due and payable by it in relation to the Debt.[34]
[34] Brown Affidavit [40]; 'BRB-40'.
The plaintiff subsequently issued this proceeding claiming payment of the Debt and seeks summary judgment.

Procedural requirements - leave to bring the Application

An application for summary judgment must be brought within 21 days after an appearance has been filed, or at a later time with leave of the court.[35] The application must be supported by an affidavit verifying the facts upon which the claim is based and stating that, in the deponent's belief, there is no defence to the claim.[36]
[35] O 14 r 1(1) RSC.
[36] O 14 r 2(1) RSC.
The plaintiff did not bring the Application within 21 days after the defendant entered its appearance. Leave is therefore required.
There is no prejudice to the defendant by the short delay of just one day in bringing the Application. The plaintiff made an oral application for leave at the hearing of the Application and the defendant took no issue with it. Leave should be and is granted to bring the Application, the time for which is extended to the date of filing.

Principles relating to summary judgment

The legal principles relating to applications for summary judgment are well established and are not in dispute. As the Court of Appeal said in Sutton Investments Pty Ltd v Realistic Investments Pty Ltd:[37]
Summary judgment will be granted only when there is no real question to be tried. The power to order summary judgment is one that should be exercised with great care: Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87, 99. It is only in the clearest of cases, when there is a high degree of certainty about the ultimate outcome of the proceedings if it went to trial, that summary judgment ought properly be granted: Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 [57]; Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 [46]; Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 [24], [53] - [55].
[37] Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14 (Sutton Investments) [24].

The plaintiff bears the legal burden of persuading the court that its claim is a good one and that there is no defence to it. If the plaintiff's affidavit or affidavits in support of the application make out a prima facie case on these two matters, the evidentiary burden passes to the defendant to show there is an arguable defence or some other reason there ought to be a trial of the action.[38]
[38] Westpac Banking Corporation v Anderson [2017] WASC 106 (Westpac v Anderson) [53] ‑ [54], [103]. See also Deputy Commissioner of Taxation v Lafferty[2017] WASC 257 (Lafferty) [54] (Tottle J), and the authorities referred to.
A defendant seeking to demonstrate an arguable defence or some other reason why there ought to be a trial must condescend to particulars and provide sufficient details of their defence.[39]
[39] Lafferty [54] citing Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109 (Moscow Narodny Bank), 113 (Brinsden J); Wallingford v Mutual Society (1880) 5 App Cas 685, 704 (Lord Blackburn).
Where an issue or question is raised, summary judgment should only be granted in favour of an applicant where it can demonstrate that the question will certainly be resolved in its favour.[40] If it is not possible to say, on the whole of the material, that there is no question to be tried, the defendant should have the opportunity to defend the action.[41]
[40] Spencer v The Commonwealth [2010] HCA 28; (2010) 241 CLR 118 [54] ‑ [55]; Fels v Rural Bank [2020] WASCA 151 [27].
[41] Westpac v Anderson [104] (Pritchard J), citing Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87, 99; Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 [57] (Gaudron, McHugh, Gummow & Hayne JJ); Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 (Gleeson CJ, Gummow, Hayne & Crennan JJ); SMEC Australia Pty Ltd v Valentine Falls Estate Pty Ltd [2011] WASCA 138 [20].
As observed by Pullin J in Morgan v Pallister, summary judgment 'is not confined to cases which are immediately plain and obvious and the fact that a transaction is intricate does not disentitle a plaintiff to relief in a clear case.' However, it is not the intention of O 14 that an action be disposed of summarily where the facts are in dispute.[42]
[42] Morgan v Pallister [2004] WASC 188 (Morgan v Pallister) [4].

Overview of the parties' positions

The plaintiff's claim is, in essence, for payment of the Debt in the amount of $1,244,812, which it submits the defendant has agreed to pay to the plaintiff as the defendant's proportionate share of the loss sustained on the Port Pirie Development when it was sold in November 2021.
It is the plaintiff's pleaded case that:
1.The defendant agreed and acknowledged that it owes the Debt and that it is liable to pay the amount claimed to the plaintiff in the 30 March 2022 Email, the 30 March 2022 Minute and by payment of each of the invoices issued by the plaintiff to the defendant for interest on the CBA Loan.
2.By a term implied at law and/or fact, the Debt was repayable immediately or on demand or within a reasonable time following demand for payment or from the sale of the Port Pirie Development.
3.Despite demand having been made, the defendant has failed to pay the Debt.
The plaintiff claims payment and seeks summary judgment in the amount of $1,244,812 together with interest. Alternatively, if the court is not persuaded that the defendant's foreshadowed set-off defence is unarguable but has doubts as to its bona fides and strength, it invites the court to require the defendant to provide security, as provided in Hazart v Rademaker.[43]
[43] Hazart v Rademaker (1993) 11 WAR 26.
The defendant submits that, on the evidence before the court, it is far from clear what the terms of the alleged agreement under which the Debt is claimed are with regard to payment of the defendant's proportionate share of the principal component of the CBA Loan. The defendant's position is, in essence, that:
1.It is not liable for repayment of the CBA Loan. The CBA Loan was made to Seafocus and the plaintiff who, in turn, loaned funds to the Company, not to the defendant.
2.In allocating the plaintiff's and the defendant's proportionate shares of the loss following the sale of the Port Pirie Development, the defendant agreed to pay the interest on its allocated share of the CBA Loan to the plaintiff, and has done so.
3.There was an agreement between the parties, as part of their broader business arrangements, that the defendant's allocated share of the principal amount of the CBA Loan of $1,244,812 would be paid from the defendant's profit share from another development the parties were involved in together.
4.The defendant is not liable to pay the principal amount until its profit share has been determined and paid.
5.Alternatively, the defendant has a defence by way of equitable set-off in relation to the amount of its unpaid profit share for the other development, which was conducted as part of the parties' development business.
6.This is not a clear case in which the court is able to determine to the required degree of certainty, at this stage of the proceeding, that the plaintiff's claim will succeed, and summary judgment should be refused.
7.Determination of the plaintiff's claim should be considered taking into account evidence, tested by cross examination, as to the nature of the business relationship and dealings between Mr Brown and Mr Pearce through the companies controlled by them, and the broader circumstances in which the alleged agreement was made.

The evidence and submissions relating to the plaintiff's claim

Mr Brown deposes in the Brown Affidavit to the facts relied on in support of the plaintiff’s claim and to his belief, on behalf of the plaintiff, that there is no defence to the claim.
Mr Brown states that he attended a meeting on 16 June 2020 at the offices of the Company's accountant on behalf of the plaintiff, together with Simon Strawbridge and Mr Pearce and Tarryn Stain, who attended on behalf of the defendant. He states that the purpose of the meeting was to discuss the status of various property developments that Mr Brown and Mr Pearce were undertaking through their corporate entities. Included in the matters discussed at the meeting was the Port Pirie Development.[44]
[44] Brown Affidavit [18]; Pearce Affidavit [24].
A copy of minutes of the meeting on 16 June 2020 signed by each of the attendees except Mr Brown is attached to the Brown Affidavit.[45] The minutes refer to various entities and projects undertaken by Mr Brown and Mr Pearce through various entities, including what are referred to as the Manjimup Project, the South Perth Project, the Kalgoorlie Project and the Port Pirie Project.
[45] Brown Affidavit [19], 'BRB-7'.
Mr Brown deposes that whilst the minutes were not signed by him, they accurately reflect his recollection of the matters discussed and decisions made during the meeting.[46] Mr Pearce also deposes to attending the meeting on 16 June 2020 and attaches a copy of the minutes signed by all of those present, including Mr Brown.[47] The minutes include the following in relation to Port Pirie:
Various matters were discussed in connection with the property holdings they have developed together and all parties resolved to draw up a written record of the key resolutions agreed to:
…
II.In connection with their joint shareholding in Port Pirie Project Pty Ltd:
Resolved to immediately borrow maximum funds possible on the Port Pirie property and use these funds to reduce the $3.844m advance from Atalanta and Seafocus and disclosed in the books of account as a loan from Atalanta Pty Ltd.
Resolved the Port Pirie property must be sold within 12 months - unless both BB and GP together agree not to.
Following sale of property, if there is any shortfall in paying out the liabilities of the Company (including loans from BB and related entities), then both BB and GP agree to fund any shortfall in proportion to their shareholdings.
[46] Brown Affidavit [19].
[47] Pearce Affidavit [24], 'GJP-4'.
It is not in issue that Mr Brown and Mr Pearce spoke to each other by telephone on 27 August 2021 about the Port Pirie Development and exchanged emails on that day.[48]
[48] Brown Affidavit [20] - [22], 'BRB-8', 'BRB-9'; Pearce Affidavit [27], 'GJP-6'.
In his email to Mr Pearce dated 27 August 2021, Mr Brown set out his record of their conversation that morning as follows:
…
Just to make a record of our conversation this morning.
We accept the offer on Port Pirie
The total amount of our share of the loss will be calculated after the final funds are deposited with the Commonwealth Bank
We will be jointly responsible for the interest payments on the outstanding balance
I will be transferring my share of the loss to my Subi facility so as to have no outstanding Port Pirie liability on my Balance sheet
I expect that you will transfer your Port Pirie liability out of my balance sheet ASAP at that time
I do not accept that you may pay off your share of the loss, from Kalgoorlie surplus funds, as the time it will take to refinance the mezzanine finance and repay the loans made to Kalgoorlie firstly to yourself and then myself is unacceptable.
…
Mr Pearce replied stating he did not accept that Mr Brown's email was an accurate record of their conversation, saying he accepted the first five lines of the email but could not accept the last three lines of the email and stating, amongst other things relating to what they had done on other projects:
…
As I explained in our conversation this morning I am not in a position to repay my share of the loss on Port Pirie at this moment.
As I explained this morning I will pay my share of the interest cost on the balance of the debt. You agreed to submit an invoice showing the details of the interest calculations and I would pay on that invoice.
As I explained this morning I am simply not in a position to pay my share of the loss at this time. As soon as I can I will. You will recall that when you found yourself in this position on the Kalgoorlie Project, I accepted your position in good faith and went into further debt to fulfill our obligations to that project.
To avoid any doubt I also raised with you the situation at 44 Station Street Subiaco and your obligation to me in respect of that property.
…
Mr Pearce's evidence is that he did not receive a reply to the email he sent to Mr Brown on 27 August 2021 and did not discuss the Port Pirie Development with him again before its sale.[49] In the Brown Reply Affidavit, Mr Brown corrects a statement he made in the Brown Affidavit[50] that he sent Mr Pearce the email attached to the Brown Affidavit marked 'BRB-9' on 27 August 2021. Rather, Mr Brown sent that email to himself on 27 August 2021 and forwarded it to Mr Pearce on 24 November 2021.[51]
[49] Pearce Affidavit [28], 'GJP-6'.
[50] Brown Affidavit [24].
[51] Brown Reply Affidavit [6(c)]; Pearce Affidavit [30], 'GJP-7'.
In forwarding his email to Mr Pearce sent on 24 November 2021, Mr Brown stated that he 'wrote the email below in anticipation of your thoughts on Port Pirie'. The 'email below' states:
Thank you Greg.
In answer to your email dated 27/8/2021 we will disagree then Greg.
Sorry but the last 3 lines of my email are non-negotiable.
I am not expecting that you have cash to pay out your share of the debt. I am expecting that you simply transfer the debt to another one of your private properties and get the loan off my books. As I will be doing. I expect that you will do this before you undertake another project and use all your equity on a new project before clearing your obligations on Port Pirie. If you don't I am in effect helping you to finance your next project.
I will not be in a position to discuss Subiaco until the Port Pirie debt is cleared from my balance sheet. Regarding Subiaco we have a written agreement and that does not include the wording of your last paragraph.
…
I will certainly discuss remuneration on Subiaco when the Port Pirie debt has been cleared off my books.
…
Attached to Mr Brown's email sent on 24 November 2021 is a handwritten document dated 1 August 2016, to which both parties have referred. It has each of Mr Brown's and Mr Pearce's name at the top and is signed by both of them and dated 1 August 2016. It appears to refer to various development projects with numbered headings, not all of which are legible, followed by handwritten notes. As far as can be discerned in an evidential vacuum, the notes relate to 'Port Pirie', 'Manjimup', 'Angelo Street', 'Kalgoorlie' and 'Subiaco Arrangement'.
Under the heading 'Port Pirie', as best as can be discerned on the face of the document, it says:
Agreed that when Manjimup sells the profit be used to pay down the Port Pirie debt.
The final heading is 'Subiaco Arrangement' and the notes appear to refer to Mr Pearce's share of the profits of the Subiaco project. In the absence of evidence as to what transpired between the parties in the intervening period, the handwritten document is of little assistance in determining the position in 2021 and subsequently.
It is not suggested by the plaintiff that the agreement relied upon had been reached at that stage (in August or November 2021). Its pleaded case upon which it seeks summary judgment is that the agreement relied upon was made and acknowledged by the defendant on 30 March 2022.
The plaintiff acknowledges in its submissions that it appears from the emails exchanged in August and November 2021 that Mr Brown and Mr Pearce disagreed about certain matters they discussed during their telephone conversation on 27 August 2021, but submits that those emails record that Mr Brown and Mr Pearce mutually understood:[52]
(a)that the Company would accept an offer to sell the Port Pirie Development;
(b)that any loss suffered by the Company would be calculated after the sale proceeds were deposited with the CBA, in partial repayment of the CBA Loan; and
(c)the plaintiff and defendant would be jointly responsible for paying interest on the outstanding balance of the CBA Loan.
[52] Brown Affidavit [20], 'BRB-8'; Pearce Affidavit [27], 'GJP-6'.
The emails exchanged in August and November 2021 are reflective of no agreement having been reached between the parties, at that stage, as to the payment by the defendant of any amount towards discharging the principal amount of the CBA Loan. Mr Brown stated in his email of 24 November 2021 that he was 'not expecting that [Mr Pearce had] cash to pay out [his] share of the debt.'
As noted, the Port Pirie Development was sold at a loss on 15 November 2021 and, after a payment from the proceeds of sale of $1,900,000 to CBA, the balance owing under the CBA Loan was $1,944,000.
On 25 November 2021, Mr Strawbridge sent an email to Mr Brown attaching a draft set of financials for the sale of the Port Pirie Development , in which he proposed certain steps to be taken to reconcile the Company's losses and to share them between its shareholders (the plaintiff and the defendant) in proportion to their respective shareholding.[53] Mr Strawbridge proposes that 'Greg is allocated $1,244,812 of the Cash Advance Facility …'. This appears, on the evidence, to be the first time the figure of $1,244,812 is referred to as being allocated to Mr Pearce (which I infer to be a reference to the defendant). There is no evidence that this email was sent or copied to Mr Pearce.
[53] Brown Affidavit [25]; 'BRB-11'.
Mr Pearce and Mr Brown exchanged emails on 28 February 2022 and 1 March 2022,[54] in which Mr Brown deposes that he requested that the defendant pay its portion of the CBA Loan 'now' and that he reiterated that in all of their previous developments, the profit and losses of the relevant development had been assessed and shared immediately upon completion. While it has been accepted on behalf of the plaintiff that Mr Brown's commentary on this and other documents is not admissible, statements are made to that effect in Mr Brown's emails, although not in those specific terms.
[54] Brown Affidavit [26] - [27]; 'BRB-12', 'BRB-13'.
It does not automatically follow that what is agreed in relation to one development, will be the same as what is agreed in relation to another. Both Mr Brown and Mr Pearce give evidence in their affidavits about the nature of their business relationship and how they have operated in relation to the developments they have undertaken together.[55] There is conflicting evidence between the parties in relation to this.
[55] Brown Affidavit [9]; Pearce Affidavit [11].
The plaintiff objects to Mr Pearce's evidence at paragraph 11 of the Pearce Affidavit on grounds of relevance and that parts of it are vague and conclusionary. Mr Brown's evidence is also given in broad, conclusionary terms as to what his and Mr Pearce's practice was and what they would do when undertaking developments together.
Mr Pearce's evidence at paragraph 11 responds to the evidence at paragraph 9 of the Brown Affidavit. He states, including by reference to particular developments, which are identified in the table in paragraph 12 of the Pearce Affidavit, how the developments were conducted, whether the developments were sold on completion or otherwise, and how profits have been allocated. He states that the Port Pirie Development is the only one that has resulted in a loss.
Although, in each case, the evidence is in broad and conclusionary terms, which limits the weight that may be given to it, in my view, it is relevant and admissible for the purpose of determining whether there was an agreement, as alleged, and its terms. It gives context to the nature of the dealings between Mr Brown and Mr Pearce (and the plaintiff and defendant), the circumstances in which they operated, and the commercial background and surrounding circumstances known to them. The Port Pirie Development was one of many the parties undertook together.
This evidence also provides some background and context to the references made by each of them and in the documents to other projects they were involved in. It is also relevant to the defendant's alleged set‑off claim, which I consider later in these reasons, which is also said to arise in the context of the parties' broader business arrangements.
On 22 March 2022, Simon Strawbridge, the Company's secretary and accountant, sent an email to Mr Brown and Mr Pearce about the Port Pirie accounts.[56] In that email, Mr Strawbridge says he had updated the current MYOB file for Port Pirie and recorded the entries regarding the sale. Amongst other things, Mr Strawbridge set out the proportionate shares of the loss on the Port Pirie Development and made suggestions as to how they should be treated in the accounts.
[56] Brown Affidavit [28], 'BRB-14'; Pearce Affidavit [38], 'GJP-11'.
Mr Strawbridge attached to his email a balance sheet for Port Pirie created on 21 March 2022, which he referred to and said, in effect, that he expected Greg (which I infer to be a reference to the defendant) would show in his books that Port Pirie owes the defendant $1,447,712 as per the attached balance sheet and the amount owing to the plaintiff of $1,244,812. He also attached invoices from the plaintiff to the defendant dated December 2021 and January and February 2022, and stated 'Greg…[a]s agreed, you will pay Atalanta the interest on the $1,244,812 CBA bill until repaid, so the invoices reflect that'.
The attachments to Mr Strawbridge's email of 22 March 2022 include the balance sheet referred to and a profit and loss statement, also created on 21 March 2022. They both relate to the Company. Recorded under the heading 'Other Long Term Liabilities' in the balance sheet are 'Windsor Knight portion of CBA facility' in the amount of $1,244,812 and 'Atalanta portion of CBA facility' in the amount of $699,188. There are also a number of Loans recorded which appear to relate to projects other than the Port Pirie Development, but it is not entirely clear on the face of the balance sheet alone. No other accounting documentation for the Company is before the court, nor is there any accounting information in evidence in relation to the plaintiff or the defendant.

On 30 March 2022, there was an exchange of emails between the defendant's business manager, Ms Stain, and Mr Strawbridge, the Company's secretary and accountant, in relation to the CBA Loan and other loans to be reflected in the Company's balance sheet.[57] The plaintiff relies on this, the 30 March 2022 Email, as one of the occasions upon which the defendant agreed and acknowledged that it owes the Debt claimed by the plaintiff.
[57] Brown Affidavit [29], 'BRB-15'.
In the 30 March 2022 Email, Ms Stain states, amongst other things:
…
Base on your workings in the email below to get Greg's share of the Cash Advance loan of $1,244,812 I suggest a journal is put forward to allocate this correctly so that all other loans are apportioned correctly.
…
Ms Stain then sets out what she believes the balance sheet should reflect, which includes 'Windsor Knight portion of CBA facility $1,244,812.00' followed by 'Atalanta portion of CBA facility $699,188.00' and their respective portions of other loans, including loans relating to 'Kalgoorlie' and 'Manjimup'.
The plaintiff also relies on the 30 March 2022 Minute as a record of the defendant agreeing on about that date that it owes the plaintiff the Debt. It submits the minute records the defendant's further, unconditional acknowledgement that it was liable for repaying interest and principal on the $1,244,812 portion of the CBA Loan.
The 30 March 2022 Minute is signed by Mr Pearce and Mr Brown in their capacities as directors of the Company.[58] The plaintiff submits that this was in circumstances where Mr Pearce is (and was) the sole director and secretary of the defendant, and Mr Brown is (and was) a director of the plaintiff, and the resolution confirmed the respective liabilities of the defendant and the plaintiff with respect to the CBA Loan.
[58] Brown Affidavit [30], 'BRB-16'; Pearce Affidavit [38], 'GJP-10'.
The relevant part of the 30 March 2022 Minute states:
In respect of the remaining debt owing to the Commonwealth Bank of $1,944,000 - it was confirmed Windsor Knight would be responsible for repaying interest and principal on the portion of $1,244,812 and Atalanta on the portion of $699,188. Such amounts to be taken up as liabilities in the books of account of the shareholders.
The books of account of the shareholders of the Company, the plaintiff and defendant, are not before the court.
The plaintiff also relies on the defendant's payment of the invoices for interest on the CBA Loan as a further acknowledgment by the defendant of its liability to repay the Debt.
The plaintiff submits that it is manifestly clear that there is an agreement between the parties that the defendant is obliged to pay the sum of $1,244,812 to the plaintiff and that, in addition to the obligation to pay that principal amount, it is required to pay the interest accruing. It is submitted that agreement is reflected not only in the terms of the conversations outlined, but in the 30 March 2022 Minute.
It is not apparent what further interest is claimed in the circumstances, it having been agreed by the parties that the defendant has paid the invoices issued to it by the plaintiff in respect of the interest that has accrued on the CBA Loan.
The plaintiff submits that the defendant's liability to pay the Debt, which it characterises as repayment of a loan, cannot be seriously disputed. It says there was no express agreement as to a time for payment of the Debt which has not yet crystallised and, contrary to the defendant's submissions, no pre‑condition to the defendant's obligation to pay. It submits that, as such, the Debt was repayable immediately, alternatively on demand or upon sale of the Port Pirie Development.[59]
[59] Referring to GHM Nominees Pty Ltd v Wallace Jackson Pty Ltd [2022] VSCA 230; 68 VR 377 (GHM Nominees) [1] (Judgment of the Court); Central City Pty Ltd v Montevento Holdings Pty Ltd [2011] WASCA 5 (Central City v Montevento) [36] - [37].
Alternatively, the plaintiff claims and submits that the obligation to repay the Debt was to be performed by the defendant within a reasonable time, which has lapsed.[60]
[60] Referring to Reid v Moreland Timber Co Pty Ltd (1946) 73 CLR 1, 13; Donau Pty Ltd v ASC AWD Shipbuilder Pty Ltd [2019] NSWCA 185 [99], and the authorities referred to.
It was submitted on behalf of the plaintiff that if the court were to find that the time for repayment of the loan was when the defendant was in a position to do so, such a term would be void as illusory and uncertain, and the loan repayable on demand.[61]
[61] Referring to Argyll Park Thoroughbreds Pty Ltd v Glen Pacific Pty Ltd (recr and mgr appointed) (1993) 11 ASCR 1, (Argyll Park) 3 - 4 (Drummond J); Re Golden Robot Records International Pty Ltd & Ors [2021] NSWSC 1146 [47] - [50], [52] (Black J), citing Argyll Park; Universal Greening Pty Ltd v Sabine (1999) 17 ACLC 880; [1999] FCA 529 [20] - [22] (Kenny J); Bell Group Ltd (in liq) v Westpac Banking Corp [No 9] (2008) 39 WAR 1; (2008) 70 ASCR 1; [2008] WASC 239 [1887] (Owen J); Dynamic Window Systems Pty Ltd v Robinson [2016] VSC 152 [22] - [26] (Efthim AsJ).

Evidence and submissions relating to defendant's reasons why summary judgment should not be granted

The defendant submits that the plaintiff has not pleaded its case as one for repayment of a loan. It pleads in vague terms that the defendant has agreed and acknowledged that it owes the plaintiff the Debt but does not plead how that obligation is said to have arisen. It does not plead what the terms of the alleged agreement are, or the terms alleged to have been breached by the defendant giving rise to the plaintiff's cause of action. No agreement or term is pleaded as to when it is alleged that the defendant was to pay the plaintiff the principal amount claimed of $1,244,812. Rather, the plaintiff seeks to imply or infer a term as to time for payment of the alleged debt.
The defendant does not dispute that money was loaned to the Company from funds that had been advanced to the plaintiff and Seafocus under the CBA Loan, but disputes that the plaintiff loaned money to the defendant, which was repayable immediately on demand or as otherwise contended.
The defendant submits, in effect, that there is insufficient evidence upon which the court may imply or infer the terms as to the time for payment as submitted by the plaintiff on a summary basis. It says that there are issues to be tried, including as to the broader business dealings and arrangements between the parties, which are relevant to the circumstances in which the alleged agreement is said to have been made, its terms and their proper construction.
As outlined, its position is that there was an agreement between the parties, as part of their broader business arrangements, that the defendant's allocated share of the principal amount of the CBA Loan of $1,244,812 would be paid from the defendant's profit share from another property development that Mr Pearce and Mr Brown undertook through the plaintiff and defendant.
If, contrary to the defendant's submissions, the court is satisfied that the plaintiff has established that the defendant is liable to pay the principal amount of the alleged Debt to the plaintiff, the defendant submits that summary judgment should not be entered because it has an arguable defence to the plaintiff's claim for the Debt by way of equitable set‑off.
Mr Pearce deposes in the Pearce Affidavit to a development on land at Station Street in Subiaco that he and Mr Brown undertook together, which he refers to as the Marketlane development, involving the development of commercial and office space. I will refer to it as the Subiaco Development, as it has also been referred to by the parties.
It is common ground that the parties were involved in the Subiaco Development and that Mr Brown was involved through the plaintiff and Seafocus, as owners of the land, and Mr Pearce through the defendant, managing the development approvals, leasing and other aspects of the development.
The defendant asserts, in effect, that there was an agreement between Mr Brown (on behalf of the plaintiff and Seafocus) and Mr Pearce on behalf of the defendant that the plaintiff would be entitled to a 33% share of the notional profit from the Subiaco Development. Mr Pearce refers, amongst other things, to the handwritten document signed by him and Mr Brown dated 1 August 2016,[62] which refers to the profit share and to an email he sent to Mr Brown dated 22 May 2020,[63] in which Mr Pearce set out the basis upon which they had undertaken aspects of the Subiaco Development.
[62] Pearce Affidavit [46], 'GJP-13'.
[63] Pearce Affidavit [46], 'GJP-3'.
Mr Pearce deposes in general terms to the work he undertook through the defendant in respect of the Subiaco Development,[64] and states that the defendant is yet to receive any remuneration in respect of the Subiaco Development and has not received any payment on account of its profit share.[65]
[64] Pearce Affidavit [46], 'GJP-3', [48] - [50].
[65] Pearce Affidavit [51].
The defendant contends that the plaintiff is, alternatively the plaintiff and Seafocus are jointly and severally, liable to pay the defendant its share of the profit on the Subiaco Development, which exceeds the amount of the plaintiff's claim for the Debt.[66] Mr Pearce attaches to his affidavit a valuation report in respect of the Subiaco Development prepared for the purpose of the proceedings.[67]
[66] Pearce Affidavit [52] - [60].
[67] Pearce Affidavit [59], 'GJP-15'.
Mr Pearce deposes that, based on the valuation, he considers that the defendant's profit share is $3,316,769.[68] The defendant claims that it is entitled to set-off its share of the shortfall on the Port Pirie Development (the Debt claimed by the plaintiff) against the amount of the defendant's profit share for the Subiaco Development.
[68] Pearce Affidavit [60].
The plaintiff says that Mr Pearce's evidence of the alleged profit share agreement is vague and does not refer specifically to agreement being reached between the plaintiff and the defendant. The plaintiff disputes the defendant's contentions as to its entitlement to a share of the profits on the Subiaco Development and denies the defendant is entitled to set‑off any amount against the plaintiff's claim for the Debt.
The plaintiff submits, in effect, that the set-off asserted by the defendant cannot succeed, in any event, because the claims are not sufficiently connected. The Port Pirie Development and the Subiaco Development are separate developments, undertaken in different states by different corporate entities. The Port Pirie Development was undertaken only by the plaintiff and the defendant. The Subiaco Development also involved Seafocus, which is not a party to this proceeding.
The defendant acknowledges that the mere existence of a cross‑claim or cross-demand is not sufficient to establish an equitable set‑off,[69] and that conventionally a defendant has been required to show there is a sufficiently close connection between the demands such that it would be unjust to allow the plaintiff to enforce its claim without taking into account the defendant's claim.[70]
[69] Hawes v Dean [2014] NSWCA 380 [63] - [65].
[70] Palaniappan v Westpac Banking Corporation [2016] WASCA 72 [50] - [51] Buss JA), [127] - [128] (Corboy J, Martin CJ agreeing [1]). See also Smith J's summary of the principles relating to the defence of equitable set-off in Siah v Wong [2021] WASC 19 [768] - [779].
The defendant contends that the plaintiff's claim relating to the Port Pirie Development and the defendant's claim relating to the Subiaco Development both arise out of a broader business relationship and property development business between Mr Brown and Mr Pearce and the plaintiff and the defendant, as companies they used to undertake the property developments. As to Seafocus' connection, the defendant submits that the plaintiff and Seafocus were involved in funding the Port Pirie Development using funds from the CBA Loan, which they are liable to repay to CBA. As a shareholder of the Company, the defendant does not (and did not) have any direct liability in relation to the CBA Loan. Its allocated share of the principal amount of that loan was to be paid from its share of the profits from the Subiaco Development, built on land owned by the plaintiff and Seafocus.
The defendant also points to the overlap between the evidence relied upon by the plaintiff in its submissions and that relied upon by the defendant in relation to its claim against the defendant, including the handwritten document relating to various developments dated 16 August 2016, the conversation between Mr Brown and Mr Pearce on 27 August 2021 and the emails subsequently exchanged between them.
For the purpose of the Application, as submitted by the defendant, the court is not required to substantially determine the equitable set-off asserted by the defendant. The question is whether there is an arguable defence, an issue to be tried or some other reason why there ought to be a trial of the action.

Determination

I am not persuaded that this matter is as clear as the plaintiff submits and, for the reasons that follow, in my view it is not appropriate to determine the plaintiff’s claim summarily. The Application should therefore be dismissed.
As outlined, the plaintiff advances it claim by way of submission on the basis that the plaintiff loaned the amount claimed to the defendant and, by a term implied at law, that amount was to be repaid by the defendant immediately, alternatively upon demand or within a reasonable time.
Although the indorsement in the writ states that the plaintiff's claim against the defendant is for payment of the sum of $1,244,812, being repayment of a loan from the plaintiff to the defendant, acknowledged by the defendant on 30 March 2022, the amended statement of claim does not plead a cause of action in those terms.
The plaintiff pleads that the defendant agreed and acknowledged that it owes the Debt to the plaintiff on 30 March 2022 and on the date each of the invoices for interest that has accrued on the CBA Loan were paid by the defendant. As submitted by the defendant, the plaintiff does not plead the terms of the agreement alleged to have been made on 30 March 2022, or the breach relied upon in support of its claim that it is entitled to recover the Debt.
I am mindful that this is not a strike out application. However, the plaintiff’s case is pleaded in very general terms and lacks what, in my view, are essential particulars as to the terms of the alleged agreement under which the Debt is said to be due and owing.
One of the key purposes of a pleading is to inform the other party of the case it is required to meet. It must provide enough detail to inform the opposing party of the specific case it needs to address,[71] including the cause or causes of action and the basis upon which the claim is said to arise.
[71] Vantage Holdings Group Pty Ltd v Donnelly [No 4] [2019] WASC 398 [60(a)], affirmed by the Court of Appeal in English v Vantage Holdings Group Pty Ltd [2021] WASCA 47 [55] - [56]. See also Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279, 286 ‑ 287 (Mason CJ & Gaudron J).
Although, the plaintiff pleads that the alternative times by which it says the Debt was repayable arise from a term implied in law and/or fact, it does not plead or particularise the facts relied upon.
It is apparent from the evidence adduced and the submissions made, as outlined that, in this case, the contract pursuant to which the plaintiff’s obligation to pay the Debt is said to arise, is not constituted by a single document. Rather, it appears to arise in the context of ongoing discussions over time, not all of which are documented or if they are, not in detail, and exchanges of emails between the individuals who controlled the plaintiff and the defendant.
Where the terms are not expressed, including as to matters such as the time for performance of an obligation such as repayment of a debt, a term may be implied or inferred.[72] In the case of an informal agreement where the parties have not reduced their contract to complete written form, in order to ascertain whether a term is implied by fact, it is necessary to identify and determine the facts from which the term is said to be implied or inferred.
[72] Central City v Montevento [38] (Murphy JA), [1] (Buss JA agreeing).
In GHM Nominees,[73] the Victorian Court of Appeal, applying Hawkins v Clayton[74] and Byrne v Australian Airlines Ltd,[75] held:
In an informal contract, where the parties had not sought to lay down all or even any of its terms either in writing or by some spoken agreement had not expressed some of its terms:
(i)the ﬁrst step for determining the terms was to seek to infer, objectively, the terms that the parties in fact intended to incorporate. The process of inferring a term was informed by the parties' communications, course of dealing and relationship to one another.
(ii)The second step was to consider whether terms could be implied as a matter of presumed or imputed intention. A term was to be implied in a contract of which the parties had not attempted to spell out its full terms if, but only if, the implication of the term was necessary for the reasonable or eﬀective operation of a contract of that nature in the circumstances of the case.
…
[73] GHM Nominees (Judgment of the Court). See also [33], [36]. See also Central City v Montevento [40] ‑ [41] (Murphy JA), [1] (Buss JA agreeing).
[74] Hawkins v Clayton (1988) 164 CLR 539, 570-1, 573.
[75] Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 422.
As observed by Beech J (as his Honour then was) in Shilkin v Jagem Pty Ltd:[76]
The question of what terms are to be inferred and implied into an informal agreement is sensitive to all the circumstances of the communications leading up to and constituting the agreement. That underlines the need for caution in an application for summary judgment.
[76] Shilkin v Jagem Pty Ltd [2013] WASC 113 [67].
The task of construing the terms of the agreement between the plaintiff and the defendant is not straightforward. This will not always be a bar to summary judgment. However, in the circumstances of this case, I am not satisfied that task can be undertaken to the necessary level of certainty on a summary basis.
Determination of the issue of the terms to be implied or inferred in the agreement between the parties requires an assessment of all the relevant facts, including the circumstances in which the alleged agreement was reached, the communications between the parties (orally and in writing), the course of dealing between them and their relationship to one another. These are matters that should be determined at trial. The evidence before the court is insufficient to make such a determination at this stage of the proceeding and without hearing and assessing the oral evidence of the witnesses.
There is a conflict on the affidavit evidence in respect of the discussions and exchanges between the parties and the circumstances in which the agreement relied upon was reached.
The defendant accepts it has agreed to pay the interest accruing on the CBA Loan and has done so. It does not automatically follow that payment of the invoices, and the interest accrued on the CBA Loan evidences agreement and acknowledgment by the defendant that it is liable to pay the principal amount of the amount outstanding on the CBA Loan of $1,244,812, or when.There is a dispute on the facts and conflicting evidence in relation to what the parties agreed in relation to this.
The dealings between Mr Brown and Mr Pearce and the entities controlled by them were conducted with very little formality. The limited financial records in evidence for the purpose of the Application indicate that the Company's accounts included shareholder loans for developments other than the Port Pirie Development.
The 30 March 2022 Minute relates to a resolution of the Company. It does not set out the terms of any agreement between the plaintiff and the defendant. It states that, in respect of the remaining debt owing to CBA under the CBA Loan, it was confirmed the defendant would be responsible for repaying interest and principal on the portion of $1,244,812 and the plaintiff on the portion of $699,188. It does not reflect the terms as to when payment was to be made.

The Minute also states that such amounts are to be taken up as liabilities in the books of account of the shareholders. The books of account of the shareholders, the plaintiff and defendant are not before the court. There is no evidence in relation to whether and, if so, how the alleged loan or liability by the defendant to the plaintiff is reflected in the shareholder accounts, or otherwise.
Given the informal way in which the parties conducted their business dealings with each other, the conflicting evidence of the parties and the limited documentary evidence before the court on the matters identified, it is not appropriate, in my view, to determine the plaintiff's claim summarily. It is trite that an action should not be disposed of summarily where material factual issues between the parties are in dispute.
As observed in Sutton Investments,[77] a summary judgment application is not the occasion to resolve which argument is to be accepted. In my view, without further investigation of the facts surrounding the communications between the parties, their course of dealings and the circumstances in which the agreement was entered into, there is real uncertainty as to the plaintiff's right to summary judgment. As such, the Application should be refused.
[77] Sutton Investments [33].
To the extent they arise for consideration in light of the conclusion I have reached, there are similar issues in relation to the set-off defence asserted by the defendant, which is said to arise as part of a broader agreement or arrangement between the parties.
Without further investigation of the facts and circumstances in which the parties operated and entered into the agreements each party contends for, and their course of dealings in relation to their development business and the Subiaco Development, I am not satisfied it can be said that the defence of equitable set off is unarguable. Nor do I have reason to doubt the bona fides of the defendant's claim or to require the defendant to provide security as a condition of being given leave to proceed with its foreshadowed defence and set-off.
Nothing in these reasons should be taken to anticipate the outcome of the proceedings. For present purposes, it is sufficient to conclude that this is not one of those very clear cases where the court should order summary judgment.

Conclusion and orders

For these reasons, I am not satisfied that this is a case in which there is no real issue to be tried or that this is a sufficiently clear case in which summary judgment should be granted. The Application should be dismissed.
Subject to any further amendments the plaintiff seeks to make to its statement of claim, the defendant should have the opportunity to put on a defence and the matter should proceed to trial in the ordinary course, if the matter is not otherwise resolved.
I will make orders as follows and then will hear from the parties in respect of the orders to be made in relation to costs, and any further orders, if such are not agreed:
1.The plaintiff has leave to bring the Application, the time for which is extended to the date of filing.
2.The Application is dismissed.
3.Within 7 days of the date of these orders, the parties are to confer in relation to the costs of the Application and any further orders, and:
(a)if agreement is reached, file a memorandum of consent orders;
(b)if agreement is not reached, each party is to file a minute of proposed orders in relation to the costs of the Application and any further orders.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MM

Acting Associate to Master Russell

9 MAY 2025