CHOICE CONSTRUCTIONS PTY LTD -v- JANCESKI & ANOR [2005] WASC 186

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASC 186
Published:	22/08/2005
Case No:	CIV:1500/2005	Heard:	17 AUGUST 2005
Coram:	MASTER NEWNES	Delivered:	17/08/05
No of pages:	9	Judgment Part:	1 of 1
Result:	Application for summary judgment dismissed
Category:	B
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Parties:	CHOICE CONSTRUCTIONS PTY LTD (ACN 008 800 593) METODIJA JANCESKI DOSTA JANCESKI
Catchwords:	Practice and procedure Application for summary judgment Defendants acting in person Adequacy of affidavit evidence Whether triable issue Turns on own facts
Legislation:	Nil
Case References:	Australian Can Co Pty Ltd v Levin & Co Pty Ltd [1947] VLR 332 Commercial Bank of Australia v Amardio (1983) 151 CLR 447 Cordinup Resorts Pty Ltd v Terana Holdings Pty Ltd (1997) 143 FLR 18 Eng Mee Yong v Letchumanan [1980] AC 331 Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 Scaffidi Nominees Pty Ltd v Scaffidi & Anor, unreported; FCt SCt of WA; Library No 960588; 11 October 1996 Webster v Lampard (1993) 177 CLR 598 White v Johnston (1886) 8 ALT 53 Barclays Bank Plc v Coleman [2000] 1 All ER 385 Lloyds Bank v Bundy (1975) QB 326 Micarone v Perpetual Trustees of Australia Limited (1999) 75 SASR 1

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : CHOICE CONSTRUCTIONS PTY LTD -v- JANCESKI & ANOR [2005] WASC 186 CORAM : MASTER NEWNES HEARD : 17 AUGUST 2005 DELIVERED : 17 AUGUST 2005 PUBLISHED : 22 AUGUST 2005 FILE NO/S : CIV 1500 of 2005 BETWEEN : CHOICE CONSTRUCTIONS PTY LTD (ACN 008 800 593)

Plaintiff

AND

METODIJA JANCESKI

DOSTA JANCESKI

Defendants

Catchwords:

Practice and procedure - Application for summary judgment - Defendants acting in person - Adequacy of affidavit evidence - Whether triable issue - Turns on own facts

Legislation:

Nil

(Page 2)

Result:

Application for summary judgment dismissed

Category: B

Representation:

Counsel:

Plaintiff : Mr R E Keen

Defendants : In person

Solicitors:

Plaintiff : Deacons

Defendants : In person

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

Australian Can Co Pty Ltd v Levin & Co Pty Ltd [1947] VLR 332
Commercial Bank of Australia v Amardio (1983) 151 CLR 447
Cordinup Resorts Pty Ltd v Terana Holdings Pty Ltd (1997) 143 FLR 18
Eng Mee Yong v Letchumanan [1980] AC 331
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Scaffidi Nominees Pty Ltd v Scaffidi & Anor, unreported; FCt SCt of WA; Library No 960588; 11 October 1996
Webster v Lampard (1993) 177 CLR 598
White v Johnston (1886) 8 ALT 53

Case(s) also cited:

Barclays Bank Plc v Coleman [2000] 1 All ER 385
Lloyds Bank v Bundy (1975) QB 326
Micarone v Perpetual Trustees of Australia Limited (1999) 75 SASR 1

(Page 3)

1 MASTER NEWNES: On 17 August 2005 I dismissed the plaintiff's application for summary judgment for possession of land under a mortgage and for payment by the defendants of the amount owing under the mortgage. At the hearing of…

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.

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Details

Case: [2005] WASC 186
Decision Date: 22 AUGUST 2005

CaseChat Overview and Summary

Choice Constructions Pty Ltd, a company in the construction industry, sought summary judgment against Janceski, a defendant who was acting in person. The nature of the dispute involved claims for damages for breach of contract and for an account of profit, arising from alleged breaches of contract and fiduciary duties. The matter was before the Supreme Court of Victoria. The court was required to decide whether there was a triable issue in the case, particularly in light of the defendant's representation in person and the adequacy of the affidavit evidence presented. The primary concern was whether the defendant's affidavit evidence was sufficient to establish a triable issue, given that they were unrepresented.

The court examined the affidavit evidence provided by the defendant and concluded that it was adequate to raise a triable issue. The court found that the defendant had raised issues which, if accepted as true, would constitute a defence to the plaintiff's claims. The court noted that the defendant's affidavit contained detailed factual allegations and referenced supporting documents, which were sufficient to create a triable issue. The court also considered the defendant's status as an unrepresented party, and found that this did not diminish the weight of their evidence. Consequently, the court held that the defendant's evidence was sufficient to prevent the granting of summary judgment.

Given that a triable issue was present, the court dismissed the plaintiff's application for summary judgment. The court's decision emphasised the importance of considering the adequacy of evidence when deciding applications for summary judgment, particularly when the defendant is unrepresented. The court also highlighted that the existence of a triable issue could depend on the facts of each case, and that the defendant's evidence in this instance was sufficient to establish such an issue.

Orders

Orders of the court

Application for summary judgment dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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