Commonwealth Bank of Australia v Dale
[2016] WADC 25
•26 FEBRUARY 2016
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: COMMONWEALTH BANK OF AUSTRALIA -v- DALE [2016] WADC 25
CORAM: DEPUTY REGISTRAR KUBACZ
HEARD: 19 FEBRUARY 2016
DELIVERED : 26 FEBRUARY 2016
FILE NO/S: CIV 1666 of 2015
BETWEEN: COMMONWEALTH BANK OF AUSTRALIA
Plaintiff
AND
NANCY KAY DALE
First DefendantCRAIG ROBERT DALE
Second Defendant
Catchwords:
Practice and procedure - Application for summary judgment - Claim under Cheques Act 1986 (Cth) - No new principles - Turns on its own facts
Legislation:
Cheques Act 1986 (Cth)
Result:
Judgment given
Representation:
Counsel:
Plaintiff: Mr K M Britton
First Defendant : In person
Second Defendant : In person
Solicitors:
Plaintiff: Gadens Lawyers
First Defendant : Not applicable
Second Defendant : Not applicable
Case(s) referred to in judgment(s):
Ansearch Ltd v Wavtech Pty Ltd [2006] WASC 184
Fancourt v Mercantile Credit Ltd (1983) 154 CLR 87
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Jacka Nominees Pty Ltd v Edwards Karwacki Smith & Co Pty Ltd (Unreported, WASC, Library No 920512, 12 October 1992)
DEPUTY REGISTRAR KUBACZ: In 19 February 2016, I heard the plaintiff's application for summary judgment against the second defendant and gave judgment on that day. I indicated that I would publish reasons, and these are those reasons.
The plaintiff brought proceedings on 13 May 2015 against the first and second defendants pursuant to s 70, s 71, s 73 and s 76 of the Cheques Act 1986 (Cth) (the Act) and in restitution and/or unjust enrichment, for monies owing to it through overdrawn amounts on two bank accounts.
Default judgment was entered against the first defendant on 21 August 2015.
As against the second defendant, the plaintiff pleads that the second defendant was a director of DEEA Pty Limited (in liq) (the Company) and opened a streamline account in the Company's name as trustee for the DEEA Super Fund on or about 5 August 2013 (the Company Account). The first defendant also opened a streamline account in her own name on or about 16 April 2007 (the Account).
During the period 2 December 2014 and 8 December 2014, two cheques were deposited into the Account totalling $162,000 and were drawn on by a Commonwealth Bank of Australia t/as a Bankwest account operated by the second defendant (Bankwest Account). Further during the period 25 September and 8 December 2014, 10 cheques totalling $2,107,460 were deposited into the Company Account and drawn on by the Bankwest Account.
On deposit of the cheques, the Bankwest Account had insufficient funds to honour the value of the cheques and as a result the Account was overdrawn by $101,122.46 and the Company Account was overdrawn by $387,452.05.
The plaintiff claims that by reason of s 70, s 71, s 73 and s 76 of the Act, the second defendant is liable to the plaintiff for the cheque dishonours.
The plaintiff further pleads that it issued letters of demand to the second defendant on 15 January 2015 and 7 May 2015, however the second defendant has failed to pay the amounts owing to the plaintiff.
Further to the claim under the Act, the plaintiff claims from the second defendant restitution for having the benefit of the overdrawn amounts and/or in the alternative unjust enrichment on the overdrawn amounts.
The plaintiff has brought an application pursuant to O 14 Rules of the Supreme Court 1971. The application is supported by affidavits of Jon Lee sworn 22 December 2015 and 18 January 2016 and affidavits of Courtney Jane Manzoney dated 15 January 2016 and 12 February 2016. The affidavits show a prima facie case for the plaintiff.
The second defendant did not attend the hearing nor did he provide any evidence in opposition to the application or any submissions, despite being present in court when orders were made for him to file and serve both an affidavit and submissions.
Delay
The second defendant entered an appearance to the writ of summons on 29 June 2015. The application for summary judgment was filed on 24 December 2015, some six months following the appearance being filed.
It is clear from the review of the file that following the filing of the appearance, the second defendant filed and served an application on 5 August 2015 seeking a stay of the proceedings. That application was not heard until 9 September 2015 at which time it was dismissed.
Also on foot was an application by the first defendant, which was listed for a special appointment on 14 October 2015. The matter came on for hearing but was adjourned pending the outcome of bankruptcy proceedings in the Federal Court.
The plaintiff notified the District Court on 16 December 2015 that the first defendant had been declared bankrupt.
It was following this that the application for summary judgment against the second defendant was filed.
During the time that the first and second defendants' respective chamber summonses were being dealt with this in this court, no further programming orders were made.
The Rules of the Supreme Court require that a summary judgment application is to be brought at an early stage. The reasoning behind this is to ensure that costs are minimised. According to the plaintiff's submissions, the plaintiff delayed in bringing the application in order for each defendant's respective applications to be dealt with by this court. It is further submitted there is no prejudice to the second defendant as the plaintiff was allowing the second defendant's application to firstly be heard and given the second defendant is self‑represented, he has not incurred any legal costs by reason of the delay.
It is within the court's discretion after considering all of the circumstances of the matter whether an extension of time should be granted (Jacka Nominees Pty Ltd v Edwards Karwacki Smith & Co Pty Ltd (Unreported, WASC, Library No 920512, 12 October 1992)). In these circumstances, it would be inappropriate to penalise the plaintiff for the delay in bringing the application, particularly given there does not appear to be any prejudice on the part of the second defendant and the second defendant has not provided any evidence to the contrary.
I therefore grant the plaintiff leave to bring the application out of time.
Legal principles
The principles upon which an application for summary judgment pursuant to O 14 of the Rules of the Supreme Court are well settled. The power to order summary judgment should be exercised with great care, and should not be exercised unless it is clear that there is no real question to be tried. In all cases where there remains uncertainty as to a party's right to judgment, then summary judgment must be refused: Fancourt v Mercantile Credit Ltd (1983) 154 CLR 87; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; Ansearch Ltd v Wavtech Pty Ltd [2006] WASC 184.
The application
Pursuant to s 70 of the Act, the person who is the drawer or indorser of a cheque that has been dishonoured is liable on the cheque. Further pursuant to s 71 and s 73 of the Act, if a cheque is dishonoured when duly presented for payment, the drawer or indorser will compensate the holder or an indorser who is compelled to pay the cheque. Section 76 allows the holder to recover damages for the dishonoured cheque.
The evidence shows, in the affidavit of Jon Lee dated 22 December 2015, pars 5 to 13, that between 2 December 2014 and 8 December 2014 and between 25 September 2014 and 8 December 2014 cheques were deposited into the Account which were not met on presentation. Therefore as the drawer/indorser of the cheque the second defendant is liable on the dishonoured cheques.
Upon further investigation the plaintiff discovered that the accounts were overdrawn by an amount of $487,574.51, and sought to obtain recovery of the amount by way of demand.
The affidavit of Jon Lee dated 22 December 2015 at pars 15 and 16, attests to letters of demand being sent to the second defendant on 15 January 2015 and 7 May 2015 demanding payment of the overdrawn amounts. As at 18 January 2016, the records show that the amount of $487,574.51 remains outstanding and unpaid (affidavit of Jon Lee dated 18 January 2016, par 3).
The limit of the second defendant's filed defence is that he plans to defend all of the matters that are brought against him.
There is nothing in the defence that specifically addresses any of the claims made against him and the defence is wholly deficient and shows no real question to be tried.
The second defendant did not appear at the hearing of the matter. He has not put forward any evidence to challenge the evidentiary basis of the plaintiff's claim, nor has he put forward any evidence to show that there is a real question to be tried.
From the evidence presented to me there is uncontroverted evidence that the second defendant's cheques have been dishonoured as outlined above and that he is now liable to compensate the plaintiff pursuant to the Act and also in restitution. The second defendant has raised no defence or opposition to the claim for summary judgment and I therefore find there is no real question to be tried.
Conclusion
For these reasons, the plaintiff is entitled to judgment against the second defendant in the sum of $487,574.51. The plaintiff is further entitled to the costs of the action, including this application, to be taxed if not agreed.
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