City Pride Holdings Pty Ltd v Independent Practitioner Network Pty Ltd
[2012] WADC 101
•28 JUNE 2012
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: CITY PRIDE HOLDINGS PTY LTD -v- INDEPENDENT PRACTITIONER NETWORK PTY LTD [2012] WADC 101
CORAM: DEPUTY REGISTRAR HOGAN
HEARD: 28 MAY 2012
DELIVERED : 28 JUNE 2012
FILE NO/S: CIV 791 of 2012
BETWEEN: CITY PRIDE HOLDINGS PTY LTD
Plaintiff
AND
INDEPENDENT PRACTITIONER NETWORK PTY LTD
Defendant
Catchwords:
Practice and procedure - Summary judgment
Legislation:
Evidence Act 1906 s 79B
Rules of the Supreme Court 1971 O 14
Result:
Application dismissed
Representation:
Counsel:
Plaintiff: Mr A Metaxas
Defendant: Mr C D Clifton
Solicitors:
Plaintiff: Metaxas & Hager
Defendant: Culshaw Miller Lawyers
Case(s) referred to in judgment(s):
Ansearch Limited v Waytech Pty Ltd [2006] WASC 184
Clambake Pty Ltd v Tipperary Projects Pty Ltd [No 3] [2009] WASC 52
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Morgan v Pallister [2004] WASC 188
Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109
Westwind Air Charter Pty Ltd v Hawker De Havilland Ltd (1990) 3 WAR 71
DEPUTY REGISTRAR HOGAN: By application dated 16 April 2012 the plaintiff sought summary judgment against the defendant. The plaintiff's claim is for $56,170 and interest thereon at 19.81% per annum from 15 March 2012 to the date of judgment, said to be the balance of money owed by the defendant pursuant to a lease which provided for the defendant as tenant to pay a contribution towards variable outgoings.
The plaintiff filed two affidavits in support of the application:
(i)The affidavit of Mr Norman Phillip Carey sworn 17 April 2012; and
(ii)The affidavit of Mr Norman Phillip Carey sworn 7 May 2012.
In opposition to the application the defendant filed the affidavit of Mr Cameron Chen sworn 16 May 2012.
Legal principles
It is well established that the power to order summary judgments should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried: Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87, 99. Great care must be exercised to ensure that under the guise of achieving expeditious finality, a party is not improperly deprived of its opportunity for the trial of the case in the appointed manner by the court: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, 129 ‑ 130.
The burden of persuasion in this judgment application was described by Pullin J in Morgan v Pallister [2004] WASC 188 in the following terms:
The plaintiff carries the burden of persuading the court that the claim is a good one, that there is no defence to it, that leave to defend should not be granted, and that judgment should be given to the plaintiff. The party showing cause against the application assumes an evidentiary burden but the overall legal burden of persuasion remains on the applicant. The power to order summary judgment should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried. It is clear however, that the procedure is not confined to cases which are immediately plain and obvious and the fact that a transaction is intricate does not disentitle the plaintiff to relief in a clear case. It was never intended that when the facts were in dispute, an action should be disposed of summarily. If a defendant's affidavit reveals inconsistencies which might in a trial persuade a court not to believe the defendant's evidence, this will not necessarily lead to judgment for the plaintiff.
Where a plaintiff has satisfied the requirements of O 14 of the Rules of the Supreme Court 1971 it has the prima facie right to an order in terms asked and the burden shifts to the defendant to satisfy the court why a judgment should not be given against him: Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109; Westwind Air Charter Pty Ltd v Hawker De Havilland Ltd (1990) 3 WAR 71.
To avoid judgment being entered the defendant must satisfy the court 'with respect to the claim, that there is an issue or question in dispute which ought to be tried or that there ought, for some other reason to be a trial of the claim': Rules of the Supreme Court O 14 r 3(1).
If after argument there remains real uncertainty as to the plaintiff's right to judgment without further investigation of the facts, summary judgment must be refused: Ansearch Limited v Waytech Pty Ltd [2006] WASC 184.
The plaintiff's claim
The affidavit of Mr Norman Phillip Carey sworn 17 April 2012 establishes the following facts:
(a)By deed dated 9 September 2003 made between the plaintiff (as the lessor), Endeavour Health Services Pty Ltd (as the lessee) and Endeavour Health Care Limited (as the guarantor), the parties agreed that there be a lease from 23 April 2004 for a period of 10 years.
(b) It was a term of the lease in cl 6.1(a), that the lessee would pay the plaintiff the lessee's proportion of the outgoings in accordance with cl 6 of the lease.
(c)It was a further term of the lease, cl 6.1(d), that the plaintiff would give the lessee a notice in writing estimating the outgoings to be incurred in or for that lease year and stating the lessee's estimated proportion of outgoings payable for that lease year.
(d)In about 2005 the leasehold interest in the Woodvale Medical Centre was assigned by Endeavour Health Care Services Pty Ltd to the defendant. Whilst no copy of the assignment document was provided to the court, it was not in dispute that the defendant accepted that it was obliged to comply with the terms of the lease.
(e)The affidavit of Mr Carey dated 17 April 2012 attested to the fact that when Mr Carey became the managing agent for the Woodvale Medical Centre he undertook a review of records which revealed that the plaintiff had failed to issue to the defendant a notice specified in cl 6.1(b)(i) of the lease and a statement as specified in cl 6.1(d) of the lease for the years ended 30 June 2007, 2008, 2009, 2010 and 2011.
(f)In the years ended 30 June 2007, 2008, 2009, 2010 and 2011 the defendant paid the plaintiff the total variable outgoing receipts specified in a document, the validity of which was questioned by the defendant. Consideration of that document will be made at a later stage.
(g)The plaintiff claimed that the effect of failing to issue the notice specified in cl 6.1(b)(i) of the lease resulted in the defendant paying the plaintiff $56,170 less than the amount that the plaintiff claimed was required to be paid pursuant to the lease.
(h)By email dated 5 March 2012 the plaintiff's solicitors provided to the defendant a summary of actual recoverable outgoings for the period 2007 – 2011 and required the defendant to pay the unpaid outgoings of $56,170 within five business days pursuant to cl 6.1(d)(i) of the lease.
The supplementary affidavit of Mr Norman Phillip Carey sworn 17 April 2012 deposes that on 29 December 2011 the plaintiff sent to the defendant a bundle of documents containing invoices for the 'Outgoings' sought to be recovered in the action.
The plaintiff, by way of oral submission, referring to the decision of Heenan J in Clambake Pty Ltd v Tipperary Projects Pty Ltd [No 3] [2009] WASC 52, in which a rent review was retrospectively reviewed, argued that by way of analogy the plaintiff was entitled to require payment of the actual outgoings notwithstanding the passage of time beyond three months when the notice ought to have issued.
In my view on the evidence before me the plaintiff has satisfied the requirements of O 14.
The position of the defendant
The affidavit of Mr Cameron Chen sworn 16 May 2012 deposes that the defendant made payments of the estimate of outgoings in accordance with the Tenant Statement/Tax Invoices issued by the plaintiff when they became due and payable. The defendant denies that it has underpaid outgoings in the amount of $56,170 as claimed by the plaintiff.
The defendant relies upon cl 6.1(d) of the lease (read with cl 28.7) and submits that in accordance with the terms of the lease, the plaintiff can only claim an adjustment of outgoings if it provides a statement of actual outgoings to the defendant within three months of the end of the lease year.
The defendant claims that by virtue of the failure of the plaintiff to provide a statement of actual outgoings within the time required in the lease that the defendant has a defence to the plaintiff's claim.
Admissibility of 'Summary' document
The defendant argued that attachment 'NPC2' of the affidavit of Mr Norman Phillip Carey sworn 17 April 2012 contains a copy of a summary table which the plaintiff purports to be a business record and the defendant regards as an inadmissible document on the basis that it is a summary of other business records and does not disclose the source/s from which it is derived.
The significance of this is that if the document is not admissible then the affidavit evidence does not provide proper evidence of the amount claimed and therefore the application would fail.
The plaintiff argued that any potential defect in the status of the document was corrected by the supplementary affidavit of Mr Norman Phillip Carey sworn 7 May 2012 which attached at 'NPC5' copies of the invoice documents upon which the summary was based.
The definition of business record in s 79B of the Evidence Act 1906 is very broad:
business record means a book of account or other document prepared or used in the ordinary course of a business for the purpose of recording any matter relating to the business;
and I conclude from consideration of the affidavits of Mr Norman Phillip Carey sworn 17 April 2012 and 7 May 2012 that the affidavit evidence is admissible in this application.
Determination
In this case I am unable to say that there is no real question to be tried and in the circumstances the orders sought in pars 1 and 2 of the chamber summons dated 16 April 2012 are refused.
I will hear the parties on the final orders to be made having regard to these reasons.
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