Carousel Glass Pty Ltd v Lim
[2018] WADC 6
•19 JANUARY 2018
CAROUSEL GLASS PTY LTD -v- LIM [2018] WADC 6
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2018] WADC 6 | |
| Case No: | CIV:727/2017 | 3 NOVEMBER 2017 | |
| Coram: | REGISTRAR KINGSLEY | 19/01/18 | |
| PERTH | |||
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| PDF Version |
| Parties: | CAROUSEL GLASS PTY LTD WILLIAM LIM |
Catchwords: | Practice Application pursuant to O 16 Rules of the Supreme Court 1971 No new principles Turns on own facts |
Legislation: | Nil |
Case References: | Knights Capital Group Ltd v Bajada and Associates Pty Ltd [2016] WASC 69 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
WILLIAM LIM
Defendant
Catchwords:
Practice - Application pursuant to O 16 Rules of the Supreme Court 1971 – No new principles - Turns on own facts
Legislation:
Nil
Result:
Application dismissed
Representation:
Counsel:
Plaintiff : Mr M T S Rennie
Defendant : Mr B Stokes
Solicitors:
Plaintiff : HFM Legal
Defendant : Brians Solicitors
Case(s) referred to in judgment(s):
Knights Capital Group Ltd v Bajada and Associates Pty Ltd [2016] WASC 69
1 REGISTRAR KINGSLEY: The defendant (Lim) has brought an application pursuant to O 16 of Rules of the Supreme Court 1971 (WA) seeking judgment against the plaintiff (Carousel). Carousel's claim is that at all material times Lim had a cash account with the plaintiff, that is, Lim must pay in advance and pay in cash or by EFT or by EFTPOS. Between January 2012 and November 2016, Carousel rendered 145 invoices to Lim with a total value of $49,988.75. Lim paid 22 of those invoices in whole or in part by EFTPOS payments totalling $13,638.81. Carousel goes on to plead that during the relevant period, Carousel issued credit notes to Lim to the value of $27,497.29 when there was no legitimate basis for doing so. Further, Carousel pleads that it supplied Lim with goods to the value of $33,594.69 for which no invoices were issued due to orders being cancelled in Carousel's computer system at the instigation of Aaron Terriaca (Aaron).
2 If a court is satisfied that an action is frivolous or vexatious, that the defendant has a good defence on the merits, or that the action should be disposed of summarily or without pleadings, then pursuant to O 16, it may order that judgment be entered for the defendant with or without costs or that the plaintiff proceed to trial without pleadings. The legal onus is on, and remains with, the defendant to show that there is no serious question to be tried on any of the causes of action raised by the plaintiff. For an action to be dismissed as frivolous or vexatious, a very clear case must be made before the court will intervene to prevent a plaintiff from putting their case for trial. The power to order summary judgment should be exercised with great care and should never be exercised unless it is clear there is no real question to be tried, (see Knights Capital Group Ltd v Bajada and Associates Pty Ltd [2016] WASC 69).
3 In support of his application for summary judgment, Lim deposes in his affidavit sworn 30 August 2017 that he purchased glass products from Carousel on a cash basis before delivery. The submission of Lim is quite simple; that Carousel never extended credit to Lim, Lim only received goods after paying for them in advance and therefore Lim does not owe Carousel any money.
4 Carousel opposes the application and has filed two affidavits, that of Italio Terriaca (Terriaca), sworn 5 October 2017 and Alicia Cornish (Cornish), sworn 5 October 2017. The affidavit of Cornish confirms Lim had a cash account with Carousel and Cornish details how EFTPOS and cash payments were generally handled by the receptionist at the front desk of Carousel.
5 Terriaca deposes that he had promoted Aaron to the position of general manager in 2014. In November 2016 Terriaca noticed some irregularities in a customer's account and instituted an internal investigation. That investigation revealed that many customers, including Lim, had received goods but no payments had been made to Carousel.
6 This issue was raised with Aaron. Aaron told Terriaca that some customers, including Lim, had paid Aaron personally a discounted amount, or for goods supplied but no invoice had been raised. Terriaca deposes he sought further detail from Aaron about the level of discounts, and the circumstances surrounding the payments, but Aaron has refused to cooperate.
7 It is this latter point that prompts Lim's submission: without the evidence of Aaron in his scheme to obtain cash payment and cancel indebtedness for goods supplied to Lim, Carousel has no prospect of success against Lim. Lim submits that the internal accounting of Carousel may show discrepancies between goods sold and the monies received or not accounted for by way of credit notes wrongly raised, but these are internal matters within Carousel. These are not events over which Lim has knowledge or could be responsible for.
8 In the end, Carousel may, without the evidence of Aaron, have difficulty proving the full amount of its claim or any part of its claim. In effect, Lim says to Carousel 'I made cash payments on all transactions and put you, Carousel, to the proof of your claim'.
9 As it presently stands, there may be considerable difficulties on the part of Carousel to prove its claim, but this is not a case where there is a high degree of certainty about the ultimate outcome. There is a conflict on the evidence which requires fuller scrutiny. I am not satisfied that this is the clearest of cases such that judgment should be entered for Lim. The application is dismissed.
10 I will hear counsel on the form of orders, the future progress of the action, and costs.
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