Blenkinsop v Blenkinsop Nominees Pty Ltd as trustee of the Blenkinsop Family Trust
[2015] WASC 254 (S)
•16 OCTOBER 2015
BLENKINSOP -v- BLENKINSOP NOMINEES PTY LTD AS TRUSTEE OF THE BLENKINSOP FAMILY TRUST [2015] WASC 254 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 254 (S) | |
| Case No: | CIV:1537/2014 | ON THE PAPERS | |
| Coram: | ALLANSON J | 16/10/15 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | JUDITH ANNE BLENKINSOP BLENKINSOP NOMINEES PTY LTD AS TRUSTEE OF THE BLENKINSOP FAMILY TRUST SILVERGLADE PTY LTD AS TRUSTEE OF THE BLENKINSOP FAMILY TRUST NO 2 |
Catchwords: | Practice and procedure Costs of application for summary judgment Turns on own facts |
Legislation: | Limitation Act 1935 (WA), s 38 Rules of the Supreme Court 1971 (WA), O 14 r 8(1) |
Case References: | Cigna Insurance Asia Pacific Ltd v Packer [2000] WASCA 415; (2000) 23 WAR 159 Whitehall Holdings Pty Ltd v Custom Credit Corporation Ltd (Unreported, WASC, Library No 92034, 19 June 1992) |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : BLENKINSOP -v- BLENKINSOP NOMINEES PTY LTD AS TRUSTEE OF THE BLENKINSOP FAMILY TRUST [2015] WASC 254 (S) CORAM : ALLANSON J HEARD : ON THE PAPERS DELIVERED : 16 OCTOBER 2015 FILE NO/S : CIV 1537 of 2014 BETWEEN : JUDITH ANNE BLENKINSOP
- Plaintiff
AND
BLENKINSOP NOMINEES PTY LTD AS TRUSTEE OF THE BLENKINSOP FAMILY TRUST
First Defendant
SILVERGLADE PTY LTD AS TRUSTEE OF THE BLENKINSOP FAMILY TRUST NO 2
Second Defendant
Catchwords:
Practice and procedure - Costs of application for summary judgment - Turns on own facts
Legislation:
Limitation Act 1935 (WA), s 38
Rules of the Supreme Court 1971 (WA), O 14 r 8(1)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Plaintiff : No appearance
First Defendant : No appearance
Second Defendant : No appearance
Solicitors:
Plaintiff : Williams & Hughes
First Defendant : Minter Ellison
Second Defendant : Minter Ellison
Case(s) referred to in judgment(s):
Cigna Insurance Asia Pacific Ltd v Packer [2000] WASCA 415; (2000) 23 WAR 159
Whitehall Holdings Pty Ltd v Custom Credit Corporation Ltd (Unreported, WASC, Library No 92034, 19 June 1992)
1 ALLANSON J: On 20 July 2015, I gave judgment refusing an application by the plaintiff for summary judgment on part of her claim. The defendants now apply for costs on the summary judgment application.
2 Under O 14 r 8 (1) of the Rules of the Supreme Court 1971 (WA):
If the plaintiff makes an application under rule 1 and the case is not within this Order, or if it appears to the Court that the plaintiff knew that the defendant relied on a contention which would entitle him to unconditional leave to defend, the Court may dismiss the application with costs, and may require the costs to be paid by the plaintiff forthwith.
3 The usual order where an application for summary judgment is dismissed is that the costs of the application be costs in the cause: Dal Pont, The Law of Costs (3rd ed, 2013) 441 - 2 [14.25]; and see Whitehall Holdings Pty Ltd v Custom Credit Corporation Ltd(Unreported, WASC, Library No 92034, 19 June 1992) 2 - 4 (Ipp J). The rationale for the usual order is that applications for summary judgment should not be brought when the plaintiff is aware or should be aware that the application is hopeless and that it has no prospect of succeeding.
4 The successful defendants apply for costs on an indemnity basis, submitting that the plaintiff persisted in the application when, on a proper consideration of the evidence, the arguments and authorities provided by the defendants, she should have known that the application was hopeless.
The decision
5 The summary judgment application was determined on a single point. The defendants asserted in submissions that the plaintiff's claim was brought outside the six-year limitation period prescribed by s 38 of the Limitation Act 1935 (WA). In part, the judgment turned on the way in which the plaintiff's claim had been pleaded. The plaintiff pleaded that it was an implied term of each loan that it would be repayable on demand (statement of claim, par 5AB and par 6AB). A loan repayable on demand creates an immediate debt, repayable immediately without the creditor first making a demand for payment. On the face of the pleading, the cause of action arose immediately when each loan was made: the first in about 1986, the second in about 1998.
6 While the plaintiff also pleaded that the debt had been acknowledged in annual financial statements, there are complicating issues regarding whether the financial statements on which she relies have been passed and approved, or signed, within the period relevant for the plaintiff's claims.
7 In short, the plaintiff may still be able to establish her claim - for example, if there has been an acknowledgment of debt, or if the loans are found, on their proper construction in the circumstances, to be repayable only after demand is made. But the defendants had identified an issue requiring determination at trial. Summary judgment was refused.
The competing submissions
8 The defendants had not yet pleaded defences. In submissions in this application, the defendants say they had given notice of the defence, and had 'condescended to particularity' in doing so. For this submission, the defendants rely on:
(1) their position at a strategic conference before Edelman J on 27 November 2014 at which, they submit, they stated their position that the claims were statutorily barred and had never been acknowledged;
(2) the terms of the judgment dismissing the application, in which I referred to the way in which the claim had been pleaded as a loan 'payable on demand'; and
(3) the re-iteration of the limitation point in the submissions filed in response to the summary judgment application.
9 The plaintiff says in response:
(1) a limitation defence must be pleaded to be relied upon;
(2) the limitation defence had not been raised either in a pleading or in correspondence;
(3) the defendants did not raise reliance on the limitation defence at the strategic conference on 27 November 2014; and
(4) while the defendants raised these matters in submissions before the hearing of the summary judgment application, they filed their submissions and the affidavit evidence on which they relied late. The submissions were filed only one working day before the hearing.
10 The solicitors who represented the defendants at the hearing had only gone onto the record on 17 March 2015, three days before the hearing on 20 March. The solicitors who had previously acted for the defendants had been removed from the record on 13 February 2015.
11 The plaintiff also made submissions to the effect that the plaintiff's case still has reasonable prospects of success. The decision on the summary judgment application does not suggest otherwise. But that does not go to the present question - did the plaintiff know that the defendants relied on a contention that would entitle them to unconditional leave to defend?
Consideration
12 In my opinion, this is not a matter in which an order for costs should be made in favour of the defendants, on the basis they have argued.
13 First, I have gone to the transcript of the strategic conference before Edelman J on 27 November 2014. I could not find any basis for the defendants' submission that they stated their position on the limitation point at the conference. The position taken by counsel for the defendants on that occasion was that the plaintiff had not properly pleaded the defendants' indebtedness, resulting in Edelman J making orders for the filing of a re-amended statement of claim.
14 Second, as submitted by the plaintiff, in an action to which s 38 of the Limitation Act applies the statute bars the remedy, but not the right. A defendant who says that an action is statute-barred must specifically plead the defence: Cigna Insurance Asia Pacific Ltd v Packer[2000] WASCA 415; (2000) 23 WAR 159 [36]. In considering whether it has been shown that the plaintiff knew the defendants would rely on that defence, I take into account that the defendants are trustee companies for family trusts; the directors are all family members and the plaintiff is the mother of the other directors; and the plaintiff pleaded that the debts had been acknowledged in the annual financial statements of the defendants. I also take into account that, while the defendants raised questions about whether the plaintiff's pleading properly stated a cause of action, they did not raise the limitation issue at the strategic conference. What was said at the conference is consistent with a letter dated 21 October 2014 from the solicitors then acting for the defendants. That is the only correspondence that has been put before the court on this application.
15 Third, the defendants did clearly raise the limitation point in submissions, but those submissions were exchanged late on 18 March 2015, for a hearing on 20 March. The defendants were only permitted to rely on them because of the difficulties they had experienced in securing legal representation.
16 For these reasons, I am not satisfied that a costs order should be made in favour of the defendants for the costs of the application. The costs of that application, including the submissions on the issue of costs, will be in the cause.
0
2
2