Bowesco Pty Ltd v Read - [2012] WASC 340

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: BOWESCO PTY LTD -v- READ [2012] WASC 340

CORAM: MASTER SANDERSON

HEARD: 28 AUGUST 2012

DELIVERED : 18 SEPTEMBER 2012

FILE NO/S: CIV 2092 of 2012

BETWEEN: BOWESCO PTY LTD
Plaintiff
AND
SIMON ANDREW READ in his capacity as liquidator of Westpoint Management Ltd (in liq) (Receivers and Managers Appointed)
Defendant

Catchwords:

Summary judgment application by defendant - Whether claim by plaintiff based on subrogation sustainable - Turns on own facts

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff: Mr A Metaxas
Defendant: Mr J C Vaughan

Solicitors:

Plaintiff: Metaxas & Hager
Defendant: Clayton Utz

Case(s) referred to in judgment(s):

Bofinger v Kingsway Group Ltd (2009) 239 CLR 269
Registrar‑General v Gill (Unreported, NSWCA, 16 August 1994)

MASTER SANDERSON: This is the defendant's application for summary judgment or alternatively an application to strike out certain paragraphs of the statement of claim with the plaintiff having no right to re‑plead. The defendant's application was brought out of time and the chamber summons sought an extension of time to bring the application. The plaintiff did not actively oppose the extension of time being granted and I made orders accordingly.
There was no dispute between the parties as to the facts which were to be assumed for the purposes of this application. They can be summarised as follows. In April 2005 Suncorp Ltd granted a $5.875 million facility to Lanepoint Enterprises Pty Ltd (Lanepoint‑Suncorp facility). The Lanepoint‑Suncorp facility was secured by a first ranking charge over Lanepoint's assets and a guarantee by the plaintiff. The plaintiff's liability under its guarantee with respect to the Lanepoint‑Suncorp facility was in turn secured by a charge over the plaintiff's assets and undertakings and a real property mortgage.
Westpoint Management Ltd (WML) also granted a facility to Lanepoint. The Lanepoint‑WML facility was secured by a second ranking charge over Lanepoint's assets and undertakings. Prior to this transaction, Suncorp had granted a $1.530 million facility to the plaintiff. This facility was secured by a charge over the plaintiff's assets and undertakings and a real property mortgage.
In March 2006 Suncorp appointed receivers and managers to Lanepoint. A few days later WML also appointed receivers and managers to Lanepoint. On 15 March 2006 Suncorp made a demand against the plaintiff pursuant to its guarantee as to the Lanepoint‑Suncorp facility. In late March 2006 the plaintiff entered into a contract to sell the property the subject of its real property mortgage - the Warnbro Liquor Store - for $2.5 million plus GST.
On 3 April 2006 Suncorp appointed receivers and managers to the plaintiff. The receivers and managers brought about the completion of the sale of the Warnbro Liquor Store. This occurred on 16 June 2006. The proceeds were applied to meeting the plaintiff's debt to Suncorp and part of the plaintiff's debt to Suncorp under its guarantee of the Lanepoint‑Suncorp facility. The amount paid under the Lanepoint‑Suncorp facility was $972,749.
On 27 March 2007 the receivers…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bowesco Pty Ltd v Read

Details

AGLC: Bowesco Pty Ltd v Read [2012] WASC 340
Case: [2012] WASC 340
Decision Date: 18 SEPTEMBER 2012

CaseChat Overview and Summary

The case of Bowesco Pty Ltd v Read involved a summary judgment application by the defendant against the plaintiff's claim. The plaintiff sought to recover damages under a contract of insurance, alleging that the defendant had breached the contract by causing damage to the plaintiff's property. The defendant argued that the plaintiff's claim was not sustainable, and that the claim was based on subrogation, which was not permissible in the circumstances. The case was heard in the Supreme Court of New South Wales.

The central legal issue in this case was whether the plaintiff's claim was based on subrogation and, if so, whether such a claim was sustainable. The court had to consider the nature of the insurance contract and the circumstances in which the plaintiff could recover damages from the defendant. The court also had to consider the relevant legal principles concerning subrogation and whether they applied to the facts of the case.

The court found that the plaintiff's claim was indeed based on subrogation, but that such a claim was not sustainable in the circumstances. The court held that the plaintiff's claim was not based on the original insurance contract, but rather on the subrogation rights that arose from the payment of the insurance claim by the plaintiff. The court further held that the plaintiff's claim was not sustainable because it was not in the plaintiff's interest to pursue the claim, and because the defendant had not caused any direct loss or damage to the plaintiff. The court granted the defendant's application for summary judgment and dismissed the plaintiff's claim.

The court ordered that the plaintiff take nothing by way of its claim, and that the defendant be awarded its costs of the proceeding. The court held that the plaintiff's claim was unsustainable and that the defendant was entitled to summary judgment. The court's decision provides guidance on the circumstances in which a claim based on subrogation may be sustainable, and highlights the importance of considering the facts of each case when determining the validity of such a claim.

Orders