Davey v Ron Farris Estate Pty Ltd
[1999] WASC 207
DAVEY -v- RON FARRIS ESTATE PTY LTD & ANOR [1999] WASC 207
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASC 207 | |
| Case No: | CIV:1604/1999 | 18 OCTOBER 1999 | |
| Coram: | MASTER BREDMEYER | 29/10/99 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Applications allowed | ||
| PDF Version |
| Parties: | ALAN DAVEY RON FARRIS ESTATE PTY LTD RONALD SYDNEY PRITCHARD FARRIS |
Catchwords: | Pleading Abuse of process Matter decided against plaintiff in earlier case Application for summary judgment by the defendants |
Legislation: | Supreme Court Rules |
Case References: | Antan Pty Ltd v Davey, unreported; SCt of WA; Library No 980331; 17 June 1998 Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404 Ashmore v British Coal Corporation [1990] 2 QB 338 Biala Pty Ltd v Mallina Holdings Ltd (1993) 13 WAR 11 Culture International Pty Ltd v Scoles (1991) 32 FCR 275 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 Haines v Bendall (1991) 172 CLR 60 House of Spring Gardens Ltd v Waite [1991] 1 QB 241 Manser v Spry (1994) 181 CLR 428 Permanent Building Society (In Liq) v Wheeler (1994) 11 WAR 187 Re Dawson [1966] 2 NSWLR 211 Reichel v McGrath (1889) 14 App Cas 665 State Bank of New South Wales Ltd v Stenhouse & Ors (1997) A Tort Rep 81-423 Webster v Lampard (1993) 177 CLR 598 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
RON FARRIS ESTATE PTY LTD
First Defendant
RONALD SYDNEY PRITCHARD FARRIS
Second Defendant
Catchwords:
Pleading - Abuse of process - Matter decided against plaintiff in earlier case - Application for summary judgment by the defendants
Legislation:
Supreme Court Rules
Result:
Applications allowed
(Page 2)
Representation:
Counsel:
Plaintiff : Mr M L Bennett
First Defendant : Mr G R Hancy
Second Defendant : Mr G R Hancy
Solicitors:
Plaintiff : Bennett & Co
First Defendant : Phillips Fox
Second Defendant : Phillips Fox
Case(s) referred to in judgment(s):
Antan Pty Ltd v Davey, unreported; SCt of WA; Library No 980331; 17 June 1998
Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404
Case(s) also cited:
Ashmore v British Coal Corporation [1990] 2 QB 338
Biala Pty Ltd v Mallina Holdings Ltd (1993) 13 WAR 11
Culture International Pty Ltd v Scoles (1991) 32 FCR 275
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Haines v Bendall (1991) 172 CLR 60
House of Spring Gardens Ltd v Waite [1991] 1 QB 241
Manser v Spry (1994) 181 CLR 428
Permanent Building Society (In Liq) v Wheeler (1994) 11 WAR 187
Re Dawson [1966] 2 NSWLR 211
Reichel v McGrath (1889) 14 App Cas 665
State Bank of New South Wales Ltd v Stenhouse & Ors (1997) A Tort Rep 81-423
Webster v Lampard (1993) 177 CLR 598
(Page 3)
1 MASTER BREDMEYER: This is an application by the defendants to strike out the plaintiff's statement of claim as an abuse of process or alternatively to enter judgment for the defendants under O 16 of the Supreme Court Rules. The background to the pleading is that on 28 January 1997 Alan Davey (Davey) entered into a contract of sale with Antan Pty Ltd (Antan) to sell certain land at 95 Scarborough Beach Road, Scarborough to Antan for $500,000. Ron Farris (Farris) was the real estate agent employed by Davey. The contract was on the standard contract for sale of land by offer and acceptance used in this State by real estate agents. The contract was subject to a number of special conditions but only two are of special relevance. The first was a subject to finance clause. The purchaser was required to obtain finance from National Australia Bank, Balcatta within 28 days from acceptance. The latest time for approval of the loan in the finance cl 1.7 was "4.00 pm on the latest day for approval shown below". The second special condition was in these terms:
"Purchaser has 30 days from acceptance of their offer to complete Due Diligence of the site for the use of accountancy practice and medical. Such investigations are to be to the purchaser's total satisfaction or this contract will be at an end."
2 An extension of time for the fulfilment of these conditions was granted. I will say more about that later. Davey maintained that the purchaser had not met the conditions and refused to complete. The purchaser Antan sued Davey in an earlier action in this Court, CIV 1563 of 1997. That action was heard by Wallwork J and he ordered Davey to specifically perform the contract. The learned Judge's reasons are published as unreported judgment Antan Pty Ltd v Davey, unreported; SCt of WA; Library No 980331; 17 June 1998. Davey lodged an appeal against that decision to the Full Court but was able to settle the dispute with Antan by the payment of $270,000 to Antan to procure the cancellation of the contract. The appeal was then withdrawn.
3 In the present action the plaintiff, Davey, is suing the real estate agent for breach of contract, negligence and breach of fiduciary duties arising out of the sale of the property to Antan. The three causes of action arise out of the same facts and it will be sufficient if I confine my summary to the breach of contract claim. It is pleaded that in engaging Farris as Davey's real estate agent a term should be implied into the agreement that Farris would use reasonable skill and judgment in carrying out Davey's instructions etc. That is certainly arguable. It is pleaded in par 14 and following of the statement of claim, that, following a meeting
(Page 4)
- held in the Stirling City Council chambers on 20 February 1997 between Davey, Muntz (the principal director of Antan) and Farris, Antan sought an extension of time of one month from Davey within which to complete the contract. Farris then prepared a written document dated 25 February 1997 setting out the terms of the proposed extension of time. That document called "the extension document" in the pleading reads as follows:
"SALE BY
OFFER & ACCEPTANCE
95 SCARBOROUGH BEACH ROAD
SCARBOROUGH
PURCHASER: ANTAN PTY LTD
VENDOR: ALAN DAVEY
EXTENSION OF TIME
1. The Vendor grants the Purchaser an extension of time, to the 17th March 1997, to secure finance for the above purchase from the N.A.B. Balcatta Business Centre.
2. Purchaser has until the 17th March 1997 to complete their Due Diligence as per Annexure A "Further Conditions" paragraph two.
3. Both parties agree to the above extension as indicated by the execution of this document."
The document was signed by the purchaser Antan but not by the vendor Davey.
4 It is pleaded that the effect of the contract and the extension document was that the latest time for approval of finance was 4.00 pm on 17 March 1997. Antan failed to notify Davey or Farris whether it had secured finance by that time. On or about 5.00 pm on 17 March Davey orally purported to terminate the contract but that termination was disputed by Antan and resulted in the previous Supreme Court action and court order already mentioned.
(Page 5)
5 It is pleaded that Farris knew that Davey was not prepared to provide Antan with any further extension of time after 4.00 pm on 17 March and wanted to terminate the contract, yet Farris failed or neglected to advise Davey that Antan was in default under cl 1.3 of the written finance conditions of contract, as a result of which, Davey was entitled to terminate the contract by notice in writing immediately.
6 It is further pleaded that on the morning of 17 March 1997 Farris received a telephone call from Muntz requesting an extension of the contract beyond 17 March 1997. It is said that Farris failed to immediately both account to, and take instructions from, Davey as to whether Davey was prepared to grant a further extension of time in which to complete the contract or whether he wished to terminate the contract upon the effluxion of the 4.00 pm deadline. At about 6.30 pm on the evening of 17 March Farris received a further telephone call from Muntz who advised him that Davey had terminated the contract. In spite of the plaintiff's instructions to Farris referred to above, Farris told Muntz that he regarded the contract as unconditional. Muntz then advised that he was going on with the contract and wished to waive the special conditions. On 18 March 1997 he sent a fax to Farris to that effect. That fax bears the date 17 March although it was sent on 18 March.
7 In par 14 of the statement of claim, which I have summarised above, pleads that on 20 February 1997 Antan sought a one month extension of time within which to complete the contract. Paragraph 15 pleads that by the extension document Antan proposed an extension of time to complete the contract until 17 March (meaning, by virtue of the contract of sale, by 4.00 pm on 17 March). There is no plea that these applications to extend were accepted by Davey. The plea assumes that they were and hence the plea that Farris was negligent in not telling Davey of his right to rescind after 4.00 pm on 17 March.
8 The defendants have argued that this pleading is an abuse of process as it seeks to litigate an issue which was decided against Davey in the earlier action in which the present defendants, Farris and his company, were not parties. In that earlier action Wallwork J heard extensive evidence from Davey, Farris, Muntz and others. The defendants rely on the statement of law found in Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404 at 410-414 per Hunt CJ at Common Law:
"There are obviously limitations to striking out pleadings or causes of action as an abuse of process upon the basis stated in
(Page 6)
- Reichel v Magrath (1889) 14 App Cas 665 and elaborated in the cases to which I have referred. The issue determined in the earlier case which is sought to be litigated in the later case must be one which the party propounding it in the latter lost in the former. The principle does not work in reverse to enable the party who won the issue in the earlier case to prevent it being litigated in the later proceedings by someone who was not a party in the former. It must be an issue which was necessarily determined in the earlier case, and one of importance to the final result. It must have been properly argued - by which I mean that it is readily apparent from whatever records there are of the earlier case that the tribunal which decided it was an appropriate one to do so, that the parties were appropriate contradictors and that the issue was regarded by them as one of importance in that case. In normal circumstances, the decision disposing of the issue must have been a final one - by which I mean that it is not subject to appeal. (The filing of a notice of appeal may clearly be seen in some circumstances as merely seeking to delay the inevitable.) There may also be circumstances in which, notwithstanding the absence of an appeal, it is clear that the earlier decision has overlooked some binding authority, or that it has caused the unsuccessful party a manifest injustice. As most of the cases have emphasised, all the circumstances of the determination in the earlier case may be considered, and there can be no definitive statement of the circumstances which will inevitably lead to a finding of abuse of process."
9 Mr Bennett, for the plaintiff, does not dispute the statements of law found in Haines nor in the other cases cited by the defendants. He argued that the trial Judge found that an oral agreement had been reached between the parties on 20 February 1997 extending the time for the purchaser to comply with the due diligence clause only until the "next meeting of the Stirling City Council" which, although they did not know the precise date at the time, was scheduled to take place on 18 March 1997. Having found that extension of time he also found that the purchaser had not breached that clause in the light of its faxed letter of 18 March already mentioned. Mr Bennett argued that the trial Judge made no finding that the subject to finance clause was extended to 18 March. The agreement reached on that clause was that time for compliance was extended until 4.00 pm on 17 March. That was breached by the purchaser and Davey had good grounds to terminate the contract
(Page 7)
- for that breach. Farris, it is said, failed to advise Davey competently on this.
10 The defendants say that there was no separate agreement reached on an extension of time on the due diligence clause (until 4.00 pm on 18 March) and on the subject to finance clause (until 4.00 pm on 17 March). The defendants say there was only one agreement reached giving an extension of time to the purchaser covering both clauses until 18 March and that the trial Judge so found. The defendants say there was no breach of contract by the purchaser because by its letter of 18 March it said that its due diligence enquiries had been completed satisfactorily and it waived its right to seek finance from the National Australia Bank and made the contract unconditional.
11 I turn now to the pleadings in the earlier action to see if the extension of the subject to finance clause was an issue. In the amended statement of claim Antan (the plaintiff) pleaded this against the defendant (Davey):
"3. By Contract for sale of Land by Offer & Acceptance dated 28 January 1997 ('the contract') the Plaintiff agreed to buy and the Defendant agreed to sell the Land for the sum of $500,000.00.
4. (a) It was a condition of the Contract that the Plaintiff had 30 days from acceptance to complete due diligence of the site for the use of the Land for an accountancy practice and medical use.
(b) It was a further condition of the Contract that finance approval be obtained by the Plaintiff 28 days from acceptance.
5. Ron Farris of Ron Farris Real Estate Pty Limited ('Farris') was at all material times the agent of the Defendant.
6. On 20 February 1997 the Defendant and John Muntz, on behalf of the Plaintiff, orally agreed to extend the time for compliance with the conditions referred to in paragraph 4 for one month so that the application could be considered by the Council at its next meeting which was on 18 March 1997.
7. On 17 March 1997 Muntz, on behalf of the Plaintiff, advised Farris that the Plaintiff's offer was unconditional.
(Page 8)
- 8. (a) By letter dated 17 March 1997, faxed to the Defendant's agent, Farris, on 18 March 1997, the Plaintiff advised the Defendant that the Contract was unconditional.
(b) In the premises, the Contract became unconditional as of 18 March 1997."
12 The further and better particulars to the statement of claim in the earlier action are consistent with that. I quote from part of that document:
"(b) The agreement was made at the City of Stirling in the office of Stuart Johnson. The agreement was subsequently confirmed in the presence of the Defendant and John Muntz and Brian Tikey on behalf of the Plaintiff in the foyer of the City of Stirling Chambers.
(c) Muntz requested that the Defendant agree to extend the time for satisfaction of the finance condition and the due diligence condition set out in the Contract so as to allow the City of Stirling to consider the Plaintiff's re-application to operate an accounting practice from the Land at the Councils (sic) meeting on 18 March."
13 The defence in par 6 denied the allegations in par 6 of the amended statement of claim. Clearly in that case the plaintiff's plea was that both special terms were extended to the Council meeting on 18 March 1997 and that was denied by the defendant so it was in issue.
14 Pages 4 to 24 of the Judge's reasons discuss the evidence on the extension of time topic. At page 23 the Judge made an express finding on the extension of time for compliance with the due diligence clause. I quote:
"I find that there was an agreement to extend the time for compliance with the due diligence clause until after the Council meeting on 18 March. I accept the plaintiff's submission that the evidence of Mr Muntz and Mr Farris should be preferred where it clashes with the evidence of Mr Davey."
15 The learned Judge made no express finding that the subject to finance clause had been extended to 17 March (as Davey contends) or 18 March (as Farris contends). Nevertheless, the learned Judge found that
(Page 9)
- the contract had been extended to 18 March 1997 and that included the subject to finance clause. I propose to review the Judge's findings on this matter. On pages 4 and 5 of the reasons it is stated that on 13 February 1997 Muntz faxed Farris and requested an extension of the contract for finance approval and for the due diligence clause. That sets the scene for what was to come.
16 At pages 5 and 6 of the judgment the trial Judge recited Mr Farris's evidence about the meeting on 20 February:
"Mr Farris said in evidence that the purpose of the meeting with Mr Johnson at the City Council offices on 20 February 1997 was so that Mr Davey could be convinced that the requested extension of time would not be a waste of time and that what Mr Muntz was trying to achieve was possible. Mr Farris said that Mr Davey had received that comfort from Mr Johnson. He said that Mr Johnson had said at the meeting that it was quite possible to achieve the desired result.
Mr Farris said that during the discussion on 20 February 1997 one of the persons present had asked about an extension of thecontract to allow the application to go before the next Council meeting. He said that Mr Davey had agreed that he had no problem with the planning application being made on that basis.
Mr Farris said that he recalled Mr Muntz asking him to prepare the papers for the extension of contract in order that the planning application could be considered by Council. Mr Farris said that he had agreed to do this and that Mr Davey had acknowledged that course of action." (Emphasis mine.)
17 Both clauses were mentioned in the extension document of 25 February quoted above. At page 6 of the reasons the trial Judge said:
"Mr Farris said he had subsequently prepared an extension document and had taken it to Mr Muntz's office on 25 February. Mr Muntz had signed it. Mr Farris said that he had put the extension date of 17 March 1997 in that document but that none of the parties had given him that date. He said it had been agreed that the purpose of the extension was so that the Council could consider the planning application. He said that he could not recall exactly where he had got the date 17 March from. He said that the extension was to the next Council meeting because
(Page 10)
- that had been the point of going to the meeting with Mr Johnson at the Council in the first place."
18 At pages 6 and 7 of the judgment the trial Judge said that Mr Farris had called on Mr Davey with the extension document but he was not available. He saw Mr Davey in his office on 26 February and Davey said:
"I don't want to sign it right now. I'll look at it and get back to you."
- Farris said he told Davey that he was leaving for Melbourne on 27 February and Davey had said to him:
"Leave it with me and I'll sign it. It's OK, we've got anagreement anyway." (Emphasis mine.)
On 13 March 1997 Farris had telephoned Davey who told him that he had not signed the extension document. Davey had said:
"Just let it roll on until after the next Council meeting as I won't give another extension after the next Council meeting." (Emphasis mine.)
Farris said that he had told Davey that he would have to relay that information to the purchaser. His instructions from Davey had been:
"No. Just let the transaction run on as it is and await the Council decision, as I won't give a further extension after that." (Emphasis mine.)
"Mr Muntz said in evidence that at the meeting at the City of Stirling on 20 February 1997, he had made a note that the next meeting of the planning committee was 11 March 1997. He had realised that he had to submit an application to the Council before that date. He said that Mr Davey had agreed to extend the time under the contract. He recalled that Mr Johnson had informed the meeting of the Council requirements and timetable and that Mr Tikey had specifically asked Mr Davey and Mr Farris whether they had any problems with the plaintiff making that application and extending time under the contract so that it could be put to the Council to make a decision. He said that Mr Davey had said he had no problem with that course of action." (Emphasis mine.)
(Page 11)
20 At page 13 of his reasons the trial Judge referred to the evidence of Johnson:
"Mr Johnson, who was employed by the City of Stirling as the Manager of Planning at the relevant time, gave evidence that he recalled the meeting on 20 February 1997 at his office. He remembered Mr Muntz, Mr Davey and Mr Farris being there. He could not recall specifically whether the extension of the contract had been discussed by the parties at the meeting. He did recall that there had been from time to time more than one conversation taking place. He recalled saying to those persons at the meeting that the next Planning Committee meeting would be on 11 March 1997 and the next Council meeting where approval could be granted was on 18 March 1997. He recalled stating to all those present that this was the next time that approval could be granted."
21 At page 14 of his reasons the trial Judge referred to the evidence of Davey:
"In his evidence Mr Davey said that that an no time during the course of the meeting of the Council on 20 February 1997 with Mr Johnson, and whether or not in the presence of Council officers, had Mr Farris, Mr Tikey or Mr Muntz discussed with him any extension of time in relation to completion of the contract. Neither had he agreed to any extension of time.
After the meeting and in the foyer of the Council chambers, Mr Muntz almost in passing had raised the possibility of the need for an extension of time. Mr Davey said that he would consider an extensionto 11 March which was the next meeting of the planning committee. Mr Muntz or Mr Tikey had then said they might require until 12 March. At that point Mr Farris had said that he would put something in writing. Mr Davey said that he might well have acknowledged that Mr Farris would put something in writing but he had not acknowledged that there would be an extension of time. He said that he had not at that meeting or at any time thereafter, granted an extension…
Mr Davey said that on 26 February 1997 Mr Muntz had given him a planning application which, as the vendor, he had been required to sign. At that time he had been quite happy to sell the property as per the contract and had therefore signed the
(Page 12)
- document. He said he had not received any written request for an extension by that date. He said that whilst he was not clear as to the exact date on which the contract with Mr Muntz had lapsed, as far as he was concerned at the time, the latest date had been 28 February 1997. He said that at some point after 26 February 1997 Mr Farris had forwarded to him a request for an extension of time signed by Muntz. He did not recall precisely when. He said that on or about 3 March 1997 he had been contacted by Mr Farris after he returned from Melbourne to see if he had signed the extension of time document. He had told Mr Farris that he had not signed the extension and that the contract was at an end." (Emphasis mine.)
22 At page 15 the trial Judge said:
"Without going into all the details of the conflicts between Mr Davey's evidence and that or Mr Farris and Mr Muntz, it is apparent that there are substantial differences. Their evidence is in conflict on important details concerning the alleged extension of the contract at the meeting on 20 February and the events after that meeting."
- At pages 16 to 20 the Judge then considered in detail evidence obtained from Farris on cross-examination. The Judge also reviewed Davey's evidence on these matters. At pages 17-18 the trial Judge said:
"I note that it was not suggested by Mr Davey that after he had received the written document concerning the extension he had telephoned or communicated to anybody that there had been some kind of error or that he had not granted any extension. What Mr Davey said he said in the foyer was that he would consider an extension until 11 March, the next meeting of the Planning Committee and that Mr Farris had said that he would put something in writing. He said that he might well have acknowledged that Mr Farris would put something in writing but he said he had not acknowledged that there would be an extension of time. He said he had not at that meeting, or at anytime thereafter, granted an extension. He said he had not received any written requests for an extension of time by the time he had signed the application form which Mr Muntz had given him on 26 February 1997. He said that whilst he was not clear on the exact date that the contract with Mr Muntz had lapsed, as far as he had been concerned at the time the latest date was 28 February 1997." (Emphasis mine.)
(Page 13)
23 At page 21 the trial Judge said something more on the evidence of Muntz and Davey:
"It is quite clear from Mr Muntz' evidence that in the foyer after the meeting with Mr Johnson in his office, Mr Davey had been asked, 'Do you have any problems with extending it by a month?' Mr Muntz repeated that when he was cross-examined and said that they were very close to the exact words. Mr Muntz said he had just been reaffirming what had been agreed inside. Mr Muntz repeated that Mr Davey had said that he did not have a problem with the extension of the contract by a month. When asked were those his exact words, he said, 'As close as I can recall to it. Yes.'
Mr Davey said that in the foyer he had said he would consider an extension until 11 March. Further on in his statement he said, 'I did not acknowledge that there would be an extension of time. I did not at that meeting or at any time thereafter grant an extension.' However, he conceded that Mr Farris had said that he would put 'something' in writing and that 'I may well have acknowledged that Farris would put something in writing. I did not acknowledge that there would be an extension of time.'
Knowing that the meeting of the Planning Committee would not be until 11 March, and that that would be outside the thirty days from the signing of the contract pursuant to cl 2 of the further conditions, and taking into account Mr Farris's evidence and the fact that on 26 February, Mr Davey had signed an application for approval to commence development when there would have been only one or two days to go until the end of the thirty days, Mr Davey's evidence is most improbable." (Emphasis mine.)
24 At page 22 the trial Judge said:
"I am satisfied on all the evidence that Mr Davey did agree to an extension of time until after the Council meeting on 18 March 1997. I accept Mr Farris's evidence generally and that he took the extension of time document to Mr Davey on 26 February. He was going to Melbourne on the next day. We know that Mr Davey did not sign that document. Mr Davey did sign the application for approval to commence development on 26 February 1997. He knew when he signed that document that the application could not be approved before the full Council
(Page 14)
- meeting on 18 March. That is consistent with him agreeing to extend the time under the contract until after the Council meeting on 18 March 1997." (Emphasis mine.)
25 At page 23 the Judge said:
"The notes Mr Farris had made on his file recording that Mr Davey had told him to 'just let the transaction run as it is, and await Council's decision, as I won't give a further extension' were consistent with Mr Davey having given an extension of the contract. They were also inconsistent with the evidence that Mr Davey gave at the hearing of this matter. (Emphasis mine.)
I find that there was an agreement to extend the time for compliance with the due diligence clause until after the Council meeting on 18 March. I accept the plaintiff's submission that the evidence of Mr Muntz and Mr Farris should be preferred where it clashes with the evidence of Mr Davey."
26 At page 24 the trial Judge said:
"An extension had been granted on 20 February by Mr Davey until after the Council meeting on 18 March 1997. Mr Davey, the vendor, had received verbal notice on 17 March, that the contract would be unconditional. He had also received written notice to that effect on 18 March, before the Council meeting."
27 I am satisfied that the learned trial Judge made a finding of fact that the contract of sale (which, of course included the subject to finance clause) was extended by agreement of the parties reached in the Stirling City chambers on 20 February 1997 until the next Council meeting on 18 March 1997. The evidence of Farris and Muntz was preferred by the trial Judge to the evidence of Davey on this matter. The trial Judge thought Davey's evidence most improbable. These principal witnesses were examined and cross-examined at that trial and that issue was decided against Davey.
28 The plaintiff's argument relies heavily on the extension document prepared by Farris which stated in cl 1:
"The vendor grants the purchaser an extension of time, to the 17th March 1997, to secure finance for the above purchase from the N.A.B. Balcatta Business Centre."
(Page 15)
- The weakness in that argument is that it was not signed by Davey and does not accord with his oral evidence in the earlier trial. It is also not an accurate statement of the oral agreement which, according to evidence of Farris and Muntz, was reached on 20 February that the contract be extended to the next Council meeting which was on 18 March 1997. Their evidence was accepted. Davey is the author of his own problems. He could have signed the extension document and it would have then superseded the oral agreement, but he did not.
29 I consider this case falls within the abuse of process principles of Haines(supra). The plaintiff is seeking to litigate an issue - the extension of the contract - which he lost in the former case. It was an issue determined in the earlier case and was important to the result in that case. It was argued properly in that case. The relevant witnesses were heard at length. The decision of Wallwork J was a final one. An appeal was lodged but withdrawn. The earlier decision did not overlook any binding authority. It did not work any manifold injustice. If it had, and that was a winning point, why was the appeal not pursued? I consider that this case is an abuse of process and should be dismissed.
30 I consider that for the same reasons the defendants' summary judgment should succeed and I would grant leave for it to be brought out of time.
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