| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : BUNBURY CITATION : CABLEWEST ELECTRICAL PTY LTD -v- NOMAD MODULAR BUILDING PTY LTD [2011] WADC 156 CORAM : REGISTRAR KINGSLEY HEARD : 18 AUGUST 2011 DELIVERED : 28 SEPTEMBER 2011 FILE NO/S : CIV 30 of 2008 BETWEEN : CABLEWEST ELECTRICAL PTY LTD Plaintiff
AND
NOMAD MODULAR BUILDING PTY LTD
First Defendant
KLOUD PTY LTD
Second Defendant
JONATHON LINDSAY BLAKEMAN
Third Defendant
Catchwords: Practice - Application for leave to bring on application pursuant to O 14 Rules of the Supreme Court 1971
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Legislation: Nil Result: Application dismissed Representation: Counsel:
Plaintiff : Mr I Morison
First Defendant : No appearance
Second Defendant : Mr J Myers
Third Defendant : Mr J Myers
Solicitors:
Plaintiff : Max Owens & Co
First Defendant : Not applicable
Second Defendant : Christopher Garvey
Third Defendant : Christopher Garvey
Case(s) referred to in judgment(s):
Deputy Commissioner of Taxation v Heaton (1997) 35 ATR 450
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1 REGISTRAR KINGSLEY: The plaintiff's (Cablewest) application is for leave to bring an application for summary judgment against the second defendant (Kloud) and third defendant (Blakeman) out of time. The action was commenced in November 2008 and a memorandum of appearance was filed by the first defendant (Nomad) in November 2008. A statement of claim was filed in February 2009 and Nomad's defence in March 2009. The matter went dormant and a notice of default (entry for trial) was issued by the court in September 2009.
2 The response to the notice of default was tardy. By an application dated 8 February 2011 Cablewest sought to have the matter taken off the inactive list, and Kloud and Blakeman joined as additional defendants. Orders in those terms were made in March 2011. Kloud and Blakeman entered an appearance on 28 April 2011. 3 In April 2011, Cablewest was given leave to amend the statement of claim in terms of a minute dated 25 March 2011 and the time within which Kloud and Blakeman were to file their defences was extended to 1 August 2011. 4 Cablewest's application was filed on 1 August 2011 supported by the affidavit of Steven Robert Attwell a director of Cablewest sworn 1 August 2011. 5 Kloud and Blakeman oppose the application. There is an affidavit of Matthew Kuan-Yew Jan for Nomad, sworn 17 August 2011.
Context 6 Nomad had a contract to supply and install a temporary camp at Karratha known as the fly camp. In May 2007 Nomad subcontracted Kloud and, on or about 12 May 2007, Kloud subcontracted Cablewest to perform the electrical work for the fly camp for $390,000 (fly camp work). 7 In July 2007 the fly camp was to become a permanent facility (the permanent camp work) which required the performance of further works. Cablewest pleads that it performed the fly camp work under contract with Kloud, and then performed the permanent camp work for which the sum of $155,402.50 is unpaid. Cablewest pleads that in October 2007, Nomad paid Kloud the sum of $650,000 and it is submitted that the $650,000 included the $155,402.50 to be paid by Kloud to Cablewest. (Page 4)
8 Kloud admits that the $650,000 included $149,600 to be paid to Cablewest. That sum was paid by Kloud to Cablewest on 12 October 2007 and, according to par 5 of Kloud's defence and par 3 of Blakeman's defence that payment was treated as payment under the fly camp contract. In essence Cablewest pleads that Kloud owes $155,402.50 under a variation to the fly camp contract, or a second contract for the permanent camp work. 9 In its defence Kloud admits that Nomad contracted with Kloud to perform the fly camp work and Kloud contracted with Cablewest to perform the fly camp work for $390,000. Kloud goes on to deny that it and Cablewest entered into a contract to vary the Kloud contract to perform the electrical work for the construction of the permanent camp. Kloud pleads that as at 10 October 2007 Kloud owed Cablewest $149,600 which was paid to Cablewest on or about 12 October 2007. Kloud admits that on 11 October 2007 Nomad paid to it $650,000 which included the sum of $149,600 due to Cablewest by Kloud.
The application for leave 10 Order 14 r 1 provides that within 21 days after an appearance, or at any later time by leave of the court, the plaintiff may apply to the court for judgment against a defendant. The appearance was filed on 28 April 2011 and therefore the application should have been filed on or before 19 May 2011. The chamber summons for leave to apply for summary judgment was filed on 1 August 2011, some 73 days after the time provided for in the rules. 11 Attwell's affidavit sworn 1 August 2011 in support of the application for leave to extend time does not make any explanation as to the reasons for delay. There are some brief paragraphs dealing with the period between October 2007 and February 2008 but no explanation as to why the application for summary judgment was not brought promptly. 12 The requirement that an application be made within 21 days after appearance, or later by leave, reflects the desirability of bringing an application for summary judgment promptly at an early stage in the proceedings, and before the parties have incurred unnecessary costs. Where a plaintiff seeks leave to bring an application for summary judgment then, as was found by Sanderson M in Deputy Commissioner of Taxation v Heaton (1997) 35 ATR 450, there are three primary considerations; the explanation for delay, prejudice to the opposing party and the question of costs. (Page 5)
13 In this matter there is no explanation by Attwell for the delay. The application for leave to extend time seeks to engage the discretionary jurisdiction of the court. To enable the discretion to be exercised there needs to be a basis for the exercise of the discretion. There is no basis as stated in Attwell's affidavit.
On the merits 14 In any event it would be inappropriate to enter judgment by way of O 14 against Kloud or Blakeman. It is the plaintiff's case that Nomad paid Kloud some $650,000 and that $650,000 included $155,402.50 to be paid by Kloud to Cablewest for the permanent camp work. Kloud admits that the $650,000 included $149,600 to be paid to Cablewest which Kloud says has been paid out to Cablewest. But this work is for the fly camp work and not the permanent camp work. 15 The defence of Kloud pleads that as at 10 October 2007 Kloud owed Cablewest $149,600 and that sum has been paid to Cablewest. This payment appeared to refer to the fly camp work as Kloud has denied that it and Cablewest entered into a contract for the permanent camp work. 16 It was never intended where facts are in dispute an action should be disposed of summarily. Whilst a court does not accept unequivocally any statement in an affidavit, if a version of the facts put forward by a defendant is not inherently incredible then a court proceeds on the basis that that version of the facts will be ultimately accepted at the trial of the action. 17 On Kloud's case there is uncertainty as to the contractual arrangements between Kloud and Cablewest in relation to the conversion of the proposed fly camp into a permanent camp. That factual dispute cannot be resolved on an application pursuant to O 14 Rules of the Supreme Court 1971. 18 Further, it was incumbent upon Attwell, having regard to the defence of Kloud, for Attwell to detail the contractual arrangements between Cablewest and Kloud such that Kloud were liable. Attwell only verifies the statement of claim and, in my opinion, that is insufficient to discharge Cablewest's burden in relation to the application. 19 The claim by Cablewest against Blakeman stands in a different category. The claim against Blakeman is that he is liable as if he were a trustee. This is on the basis that Blakeman, being the sole director and (Page 6)
secretary of Kloud, knowingly assisted in a breach of trust by Kloud. The particulars are that Cablewest will ask the court to draw an inference from the fact that Blakeman is a sole director of Kloud. The claim of the breach of trust by Blakeman seems to arise from an email dated 16 October 2007 that Blakeman has seemingly used funds paid to Kloud for specific works and not distributed them appropriately. The email as pleaded is from a person named McCarthy 'of the first defendant' to Attwell for Cablewest. No other evidence is produced in relation to this issue. In any event Blakeman's defence is simple: as of 10 October 2007 Kloud owed Cablewest $149,600 and that has been paid. 20 Having regard to the nature of the claim against Blakeman, and the fact that Attwell has not given any factual detail to explain how a court would be asked to draw an inference, I am of the opinion that the application pursuant to O 14 should not have been brought as against Blakeman.
Conclusion 21 Leave is refused to extend time to bring an application pursuant to O 14 Rules of the Supreme Court. In any event for the reasons given the application against Kloud should fail and the application against Blakeman was without merit. |