Chua v WANG
[2002] WASC 74
CHUA & ANOR -v- WANG & ANOR [2002] WASC 74
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASC 74 | |
| Case No: | CIV:2471/2001 | 4 APRIL 2002 | |
| Coram: | MASTER SANDERSON | 11/04/02 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave refused | ||
| B | |||
| PDF Version |
| Parties: | ANNA CHUA AGNES TAN KEE HONG JONATHAN SIN YEOK WANG IRENE WONG |
Catchwords: | Practice and procedure Application by defendant for leave to bring summary judgment application out of time Application to waive requirement of O 59 r 9 Summary judgment application Turns on own facts |
Legislation: | Nil |
Case References: | Nil Archer v Channel Seven Perth Pty Ltd [2001] WASC 195 Buyquick.Com Ltd v Foxgold Pty Ltd [2000] WASC 216 Cordinup Resorts Pty Ltd v Terana Holdings Pty Ltd (1997) 143 FLR 18 Cox v Hickmam (1860) 8 HLC 268 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 Dosike Pty Ltd v Johnson, unreported; SCt of WA; Library No 960708; 11 December 1996 Evans Deakin v Kaiser (1968) Qd R 379 Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 Interhotel Australia Pty Ltd v Austotel Pty Ltd, unreported; SCt of WA; Library No 6787; 15 July 1987 Lang v James Morrison & Co Ltd (1911) 13 CLR 1 Michael v Nicholson, unreported; SCt of WA; Library No 950660; 1 December 1995 Re Spanish Prospecting Company Ltd [1911] 1 Ch 92 Russell-Davidson v Prosin, unreported; SCt of WA; Library No 980277; 22 May 1998 The Commissioners of Inland Revenue v Williamson (1928) 14 TC 335 United Dominion Corp Ltd v Brian Pty Ltd (1985) 157 CLR 1 Webster v Lampard (1993) 177 CLR 598 Weiner v Harris [1910] 1 KB 285 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- AGNES TAN KEE HONG
Plaintiffs
AND
JONATHAN SIN YEOK WANG
IRENE WONG
Defendants
Catchwords:
Practice and procedure - Application by defendant for leave to bring summary judgment application out of time - Application to waive requirement of O 59 r 9 - Summary judgment application - Turns on own facts
Legislation:
Nil
Result:
Application for leave refused
(Page 2)
Category: B
Representation:
Counsel:
Plaintiffs : Mr A J Aristi
Defendants : Mr T J Carmady
Solicitors:
Plaintiffs : Tan & Tan
Defendants : Williams & Hughes
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Archer v Channel Seven Perth Pty Ltd [2001] WASC 195
Buyquick.Com Ltd v Foxgold Pty Ltd [2000] WASC 216
Cordinup Resorts Pty Ltd v Terana Holdings Pty Ltd (1997) 143 FLR 18
Cox v Hickmam (1860) 8 HLC 268
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Dosike Pty Ltd v Johnson, unreported; SCt of WA; Library No 960708; 11 December 1996
Evans Deakin v Kaiser (1968) Qd R 379
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Interhotel Australia Pty Ltd v Austotel Pty Ltd, unreported; SCt of WA; Library No 6787; 15 July 1987
Lang v James Morrison & Co Ltd (1911) 13 CLR 1
Michael v Nicholson, unreported; SCt of WA; Library No 950660; 1 December 1995
Re Spanish Prospecting Company Ltd [1911] 1 Ch 92
Russell-Davidson v Prosin, unreported; SCt of WA; Library No 980277; 22 May 1998
The Commissioners of Inland Revenue v Williamson (1928) 14 TC 335
United Dominion Corp Ltd v Brian Pty Ltd (1985) 157 CLR 1
Webster v Lampard (1993) 177 CLR 598
Weiner v Harris [1910] 1 KB 285
(Page 3)
1 MASTER SANDERSON: This is the defendant's application for a summary judgment brought under O 16 of the Rules of the Supreme Court 1971. As the application was brought more than 21 days after the entry of appearance, leave is required under the provisions of O 16 r 1(1). Further, the plaintiff says that there has been no conferral between the solicitors for the plaintiffs and defendants and therefore no compliance with the provisions of O 59 r 9. In response to that submission the defendants say that they have taken all necessary steps and they seek a waiver of compliance with the rule under the provisions of r 9(2). It is convenience if I deal with these two issues before dealing with the summary judgment application itself.
2 The history of the proceedings is detailed in an affidavit of Tully James Carmady, sworn 14 January 2002 and filed in support of the application. This affidavit contains a chronology and that chronology is not in dispute. The writ of summons in the action was served on the defendants on 26 September 2001. On 2 October 2001 the defendant's solicitors wrote to the plaintiff's solicitors pointing out an error in the spelling of the second-named defendant's surname. An appearance was entered on behalf of the defendants on 9 October 2001. An amended writ of summons was served on the defendants on 10 October 2001. A statement of claim was served on 30 October 2001. To comply with the requirements of O 16 r 1, any summary judgment application should have been brought on or before 1 November 2001.
3 A status conference was held on 31 October 2001. At that status conference it became clear that due to an oversight the statement of claim which had been served on the defendants had in fact been filed in the District Court. Leaving that issue to one side, counsel for the defendants advised the Registrar and counsel for the plaintiffs that the defendants took issue with the form of the statement of claim. Counsel indicated he would write to the plaintiffs' solicitors outlining his difficulties and inviting amendment. This he did by facsimile of 7 November 2001.
4 As a consequence of this letter an amended statement of claim was delivered on 12 November 2001. Mr Carmady says that he considered the amended statement of claim and determined that not only was it defective but that it was appropriate to apply for a summary judgment rather than to seek to strike out the statement of claim under O 20.
5 The summary judgment application was not filed until 21 December 2001. In other words, some five weeks elapsed between Mr Carmady concluding that a summary judgment application should be brought and
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- the application being made. That delay, a not inconsiderable delay given the time constraints to be found in O 16 r 1, is explained by saying that it was a result of Mr Carmady's "pre-Christmas workload".
6 In my view no criticism could be directed at the defendants' solicitors for not making an application under O 16 prior to the delivery of the amended statement of claim on 12 November 2001. They proceeded in a way which is consistent with the spirit, if not necessarily the letter of the rules. But in my view once the amended statement of claim was received on 12 November 2001, they should have acted promptly. By then, given that there had been a detailed analysis of the defects in the first version of the statement of claim and given that they must have been aware that the 21 days under O 16 r 1 had expired, time was of the essence. To then wait a further five weeks is unacceptable. Furthermore, there is no adequate explanation for the delay. Experience shows that some flexibility is essential in relation to the time limits imposed both with respect to O 14 and O 16. Some cases are of great complexity and it is simply not reasonable to expect a party to comply with the time limits imposed. In other cases, a client might be based interstate or overseas and the need to take instructions means an application is delayed. A host of other situations arise where an extension of time is appropriate. But in a case such as this I am not satisfied that the explanation for the delay is adequate and that it would be inappropriate to extend the time. Accordingly I would decline to grant leave to bring the application.
7 Having reached that conclusion it is, strictly speaking, unnecessary for me to deal with any other aspect of the defendants' application. However, in deference to the parties I should deal briefly with both the issue raised under O 59 r 9 and with the defendants' application for judgment.
8 In relation to O 59 r 9 I am satisfied that the defendants' solicitors did all they could in an attempt to confer in relation to the application. It must be said in applications such as this where a party is seeking judgment which will put an end to the claim, it is unlikely that much will flow from conferral. The best that can be hoped for is that the issues might be narrowed or some aspect of the evidence might be clarified. That is not to say conferral ought not take place. It should and if it does not, that may have consequences for a party, not least of all with respect to costs. But if there is a failure to confer when the application is for judgment, it seems to me to be of less consequence than when what it is at issue is simply an interlocutory application.
(Page 5)
9 In any event, in this case, the evidence shows that the defendants' solicitors did attempt to negotiate with the plaintiffs' solicitors. The defendants relied upon a second application of Mr Carmady sworn 4 April 2002 which annexed a copy of a facsimile he sent to the plaintiffs' solicitors. That facsimile, in essence, invited conferral. It provoked no response. The defendants' solicitors thereafter took no further steps. In my view they did enough. They had no way of forcing the plaintiffs' solicitors to confer and they were entitled to assume no agreement could be reached. In these circumstances I would have been prepared to waive compliance with O 59 r 9(1).
10 In relation to the application itself the plaintiffs claim that they entered into a partnership with the defendants to run two cafes. This, it is said, was to be done through a company, the shares of which were held by the plaintiffs and the defendants. It is pleaded that in furtherance of the partnership the first-named plaintiff provided security for a business loan and the second-named plaintiff contributed a sum of money, presumably as working capital. The plaintiffs say that the partnership has now come to an end and they seek an account of the affairs of the partnership. That is very much a truncated summary of what is pleaded but it is sufficient for present purposes.
11 The argument of the defendants can be summarised in this way. There are three elements which are necessary to establish a partnership. These are the carrying on of business, the carrying on of that business in common and the carrying on of the business with a view to profit. It is said that none of these three elements are present in the pleaded case and therefore the plaintiffs cannot establish that there was a partnership. That being the case the action for an account must fail.
12 I am satisfied that it is possible to discern from the pleaded case all three elements of a partnership. It is clear that the plaintiffs and the defendants were carrying on business. The business they were carrying on was the running of the two cafes. They may have carried on that business by using a company as an intermediary, thus causing all sorts of complications within the business arrangement, but that does not alter the fact that they were carrying on business. In any event, that proposition is at least arguable, given what it is said in the statement of claim was agreed between the parties. It follows from that conclusion that they were both carrying on the business in common and with a view to profit.
13 It was the defendants' position that as the cafes were run by a company in which each of the plaintiffs and defendants were shareholders
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- and that the profits or losses were sustained within the company, there could not be a partnership arrangement. I am not satisfied that that is the case. As I have said, I think it is at least arguable that the company was nothing more than a vehicle used to further the partnership aims. On a summary judgment application I could not be satisfied to the required standard that the plaintiffs' claim could not succeed.
14 In all the circumstances then I would dismiss the defendants' application. I will hear the parties as to the precise form of orders and as to costs.
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