Coral Reef Pty Ltd v Mussels WA Pty Ltd

[2010] WASC 229

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   CORAL REEF PTY LTD -v- MUSSELS WA PTY LTD [2010] WASC 229

CORAM:   ACTING MASTER CHAPMAN

HEARD:   10 AUGUST 2010

DELIVERED          :   3 SEPTEMBER 2010

FILE NO/S:   CIV 2985 of 2009

BETWEEN:   CORAL REEF PTY LTD

Plaintiff

AND

MUSSELS WA PTY LTD
First Defendant

CHRISTOPHER COLIN BLEACH
First-named Second Defendant

MARK ANTHONY CONNORS
Second-named Second Defendant

BRENDAN WILLIAM BRYDEN
Third-named Second Defendant

ERICA JAYE SCATES
Fourth-named Second Defendant

Catchwords:

Practice and procedure - Summary judgment - A question which should be tried - Turns on own facts

Legislation:

Nil

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Plaintiff:        Mr B W Duckham

First Defendant  :        No appearance

First-named Second Defendant      :        No appearance

Second-named Second Defendant   :        Mr B W Ashdown

Third-named Second Defendant     :        No appearance

Fourth-named Second Defendant    :        No appearance

Solicitors:

Plaintiff:        B W Duckham & Co

First Defendant  :        No appearance

First-named Second Defendant      :        No appearance

Second-named Second Defendant   :        MGB Legal

Third-named Second Defendant     :        No appearance

Fourth-named Second Defendant    :        No appearance

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

Australian & New Zealand Bank Group Ltd v Cooper (1993) 9 WAR 112

Bunbury Foods Pty Ltd v National Bank of Australasia Ltd (1984) 153 CLR 491

Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87

1. ACTING MASTER CHAPMAN:  The plaintiff by way of chamber summons filed on 26 March 2010 seeks that there be summary judgment for the plaintiff against the second‑named second defendant. 

2. On 6 April 2010 I made certain programming orders.  The first required the second‑named second defendant to file and serve any affidavit on or before 4 May 2010; this was not filed until 27 July 2010.  The plaintiff was required to file and serve written submissions and list of authorities by 18 May 2010; this was not done until 5 August 2010.  The second‑named second defendant was required to do likewise on or before 25 May 2010 but did not do so until late on 9 August 2010. 

3. No explanation has been given for these significant delays.  In my view, orders of the court are taken too casually.  It is the second‑named second defendant who brought about the delay without any explanation and in my view he should not be entitled to any costs in relation to the affidavit and written submissions which were not filed in accordance with the order of the court. 

4. Paragraphs 8 and 9 of the statement of claim reads:

   8.By notices of demand issued to the Second Defendants dated 10 November 2009, the Plaintiff demanded from each of the Second Defendants, payment of the Secured Money.

   9.Notwithstanding the demands referred to in paragraph 8 above, the Second Defendants have failed to pay the amount of $75,000.00 due and owing to the Plaintiff as specified in the demands and the Plaintiff is entitled to recover that amount from them. 

5. A copy of the notice of default is annexed to the affidavit of Mr Franklyn James Leach sworn on 26 March 2010 and is annexure FJL‑3.  Counsel for the second‑named second defendant submits the plaintiff has not provided proof of service of the notice of default.  In answer to that counsel for the plaintiff refers to par 4 of the affidavit of Mr Leach which reads:

   There is annexed hereto and marked 'FJL‑3' a copy of the notice directed to the second named second defendant dated the 10th November 2009 which has been served. 

6. That seems to me to lack the detail one would expect. There is no evidence of who served the notice of default, how it was served, when it was served, nor upon what basis Mr Leach makes that claim. Apart from the requirement of O 14 r 2(1) of the Rules of the Supreme Court 1971 (WA) this evidence is rather important in this case. The notice of default is said to be dated 10 November 2009. The action was commenced on 20 November 2009. One I think can assume if service of the notice of default took place it was between those dates, which is quite a limited period.

7. The notice of default at par 4 required immediate payment of the sum of $75,000.  Counsel for the second‑named second defendant submits that a reasonable opportunity to meet the demand was not given.  In Bunbury Foods Pty Ltd v National Bank of Australasia Ltd (1984) 153 CLR 491, 504 the court said:

   In our opinion, therefore, the notice of demand given on 5 April 1982 was a valid notice, but Bunbury was to be allowed a reasonable time in which to meet the demand. In this regard, the events of 8 April 1982 are relevant.

8. This issue was considered by Master Bredmeyer in the Australian & New Zealand Bank Group Ltd v Cooper (1993) 9 WAR 112, 118 where he said:

   Reasonable time to pay

   A second possible arguable defence in this case is whether the defendants were given reasonable time to pay upon receipt of the notice of demand.  The High Court in Bunbury Foods (at 502‑503) in a passage I have quoted above said that when a debtor is required to pay a debt on demand, a reasonable time must be allowed for him to meet the demand and that he must have a reasonable time to 'get the money from some convenient place'. This principle was further examined by the New South Wales Court of Appeal in Bond v Hong Kong Bank of Australia Ltd (1991) 25 NSWLR 286. In that case three notices of demand were served on Mr Bond at different times requiring him to pay a debt of US$194,644,443.97 as a guarantor. The learned judges held that when a person is required by contract to pay a debt on demand he was entitled to such time as was reasonably necessary for implementing the mechanics of arranging the necessary bank transfers of the funds. He is not, however, entitled to time to go out and try and borrow the money necessary to enable him to discharge his obligations. See Gleeson CJ (at 295), Kirby P (at 317-319) and Mahoney JA (at 326), who agreed with the other two judges on appeal. In that case, the judges held that 13 hours notices was sufficient to enable Mr Bond to arrange bank transfers to pay the debt. In any event, the Judges pointed out (for example, at 295 and 319) that the matter was entirely academic because Mr Bond admitted that he had no prospect of paying the debt whether he had been given several hours, several days, or several weeks.

9. The power to order summary judgment should only be exercised when it is clear that there is no legal question to be tried and to be exercised with great care:  Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87, 99. In the case before me I consider this is not a case where that discretion should be exercised.

10. If one were to accept the notice of default was served, I do not know when it was served, and thus whether or not the second‑named second defendant had a reasonable time in which to comply.  The second‑named second defendant has an arguable defence as to whether or not he was given reasonable time to pay upon receipt of the notice of default.

11. The second‑named second defendant raises a number of other issues in relation to this application.  I consider there is some force in some of those submissions, but in view of the fact that I consider the second‑named second defendant has an arguable defence in relation to the question of the notice of default I do not propose to address those but rather give the second‑named second defendant leave to defend the claim against him.