Bullsbrook Properties Pty Ltd v Jones Lang LaSalle (WA) Pty Ltd

[2011] WASC 124

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   BULLSBROOK PROPERTIES PTY LTD -v- JONES LANG LASALLE (WA) PTY LTD [2011] WASC 124

CORAM:   MASTER SANDERSON

HEARD:   5 APRIL 2011 & ON THE PAPERS

DELIVERED          :   12 MAY 2011

FILE NO/S:   CIV 2452 of 2010

BETWEEN:   BULLSBROOK PROPERTIES PTY LTD

Plaintiff

AND

JONES LANG LASALLE (WA) PTY LTD
First Defendant

GERALDTONE PARTNERS PTY LTD
Second Defendant

Catchwords:

Summary judgment - First defendant holding deposit - Whether plaintiff entitled to deposit - Turns on own facts

Legislation:

Nil

Result:

Summary judgment granted

Category:    B

Representation:

Counsel:

Plaintiff:     Ms K Parker

First Defendant             :     No appearance

Second Defendant         :     Mr R A Rowick

Solicitors:

Plaintiff:     Price Sierakowski

First Defendant             :     No appearance

Second Defendant         :     Richard Rowick

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

Nil

1. MASTER SANDERSON:  This is the plaintiff's application for summary judgment.  The application is brought out of time and an extension is required.  The granting of that extension is opposed by the second defendant.  It is convenient to begin with a summary of the facts about which there is no dispute.

2. On 26 March 2010, the plaintiff sold to the second defendant two properties in Bullsbrook.  In each case, the form of the contract was identical.  Each contract consisted of a document entitled 'Contract for Sale of Land or Strata Title by Offer and Acceptance', together with annexures A and B. 

3. Annexure B contained as cl 1.6 the following:

   A deposit of $75,000.00 is due and payable on satisfaction of the Due Diligence on the Final Date and shall be paid into the Jones Lang LaSalle Trust Account.  The deposit at satisfaction of due diligence shall be non‑refundable.

4. The second defendant either undertook the due diligence and was satisfied with what it found, or waived its right to undertake the process.  It duly paid $75,000 to the first defendant, as it was required to do pursuant to cl 1.6 of Annexure B.

5. The second defendant failed to settle on the properties when called upon to do so by the plaintiff.  The first defendant then indicated it intended to pay both deposits to the plaintiff, pursuant to the contracts.  The second defendant objected, alleging the plaintiff had engaged in misleading and deceptive conduct which would give the second defendant the right to void the contract.  Faced with the plaintiff and the second defendant's competing claims, the first defendant issued an interpleader summons.  The plaintiff filed a statement of claim, which was subsequently amended. 

6. The statement of claim seeks is a declaration the plaintiff is entitled to the deposit paid under each of the contracts.  There is no claim brought by the plaintiff against the second defendant in relation to the second defendant's failure to settle on the sales. 

7. In my view, the plaintiff is entitled to the order that it seeks - that is to say, a declaration the second defendant is liable pay the $75,000 in each case to the plaintiff.  In addition, there should be an order the first defendant make such payment.  The contractual provision is clear.  Once the due diligence was complete, the plaintiff was entitled to be paid the deposits.  They were non‑refundable.  The clause required the deposits to be paid to the first defendant, but that was simply a mechanism dictating how the funds were to be handled.  As soon as the deposits were paid to the first defendant, the plaintiff had a right and entitlement to that money.  The first defendant had no right to retain the funds pending settlement.  It had an obligation to pass those funds to the plaintiff forthwith. 

8. I am satisfied there ought be leave to bring this application.  The delay is minimal and is adequately explained in the affidavit of Vincent Siciliano, sworn 25 January 2011.  The second defendant has suffered no prejudice as a consequence of the delay.

9. Insofar as the defence of the second defendant is concerned, in my view, it has no bearing on the entitlement of the plaintiff to be paid the deposits.  Even assuming the second defendant had some right of action against the plaintiff under the Trade Practices Act 1974 (Cth) or otherwise, that has no bearing on the contractual entitlement of the plaintiff to receive the deposits. It may be if the second defendant was successful in some from of cross‑claim, it could obtain an order voiding the contracts and requiring the plaintiff to repay the deposits. That does not entitle the second defendant, as matters stand at present, to in some way undermine the contractual provisions governing the relationship between all three parties. Insofar as this application is concerned, the claims advanced by the second defendant are of no moment.

10. There remains the question of the first defendant's costs.  The first defendant undertook to abide by the order of the court and, understandably, took no part in the summary judgment process.  However, it sought its costs of the interpleader summons on an indemnity basis.  In my view, it is entitled to those costs on an indemnity basis and they should be paid by the second defendant.  As I have indicated, there was no basis upon which the second defendant could have insisted the first defendant retain the deposits.  That was clear on the face of the documents.  The wording of cl 1.6 is unequivocal.  That being so, and the first defendant being an innocent bystander, it ought be protected in relation to costs and those costs ought be borne by the second defendant. 

11. I will hear the parties as to the precise form of orders.