DORIC GROUP HOLDINGS PTY LTD -v- GARSIDE [2016] WASC 38

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2016] WASC 38
Case No:	CIV:1448/2014	Heard:	20 NOVEMBER 2015
Coram:	MASTER SANDERSON	Delivered:	11/02/16
No of pages:	11	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
PDF Version

Parties:	DORIC GROUP HOLDINGS PTY LTD DORIC CONTRACTORS PTY LTD GARY DESMOND GARSIDE TERRY JAMES PILBEAM ANDREW JAMES FATIN GREGORY LINTON ALLEN ROBERT LINDSAY SHIRLEY
Catchwords:	Defendants' application for summary judgment Turns on own facts
Legislation:	Fair Trading Act 1987 (WA) Strata Titles Act 1985 (WA)
Case References:	Forsayth NL v Northern Gold NL (Unreported, WASCA, Library No 940012, 20 January 1994) Perron Investment Pty Ltd v Tim Davies Landscaping Pty Ltd [2009] WASCA 171

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : DORIC GROUP HOLDINGS PTY LTD -v- GARSIDE [2016] WASC 38 CORAM : MASTER SANDERSON HEARD : 20 NOVEMBER 2015 DELIVERED : 11 FEBRUARY 2016 FILE NO/S : CIV 1448 of 2014 BETWEEN : DORIC GROUP HOLDINGS PTY LTD

First Plaintiff

DORIC CONTRACTORS PTY LTD

Second Plaintiff

AND

GARY DESMOND GARSIDE

First Defendant

TERRY JAMES PILBEAM

Second Defendant

ANDREW JAMES FATIN

Third Defendant

GREGORY LINTON ALLEN

Fourth Defendant

ROBERT LINDSAY SHIRLEY

Fifth Defendant

Catchwords:

Defendants' application for summary judgment - Turns on own facts

Legislation:

Fair Trading Act 1987 (WA)

Strata Titles Act 1985 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

First Plaintiff : Mr P Mendelow & Mr P J Hannan

Second Plaintiff : Mr P Mendelow & Mr P J Hannan

First Defendant : No appearance

Second Defendant : No appearance

Third Defendant : Mr M Hotchkin

Fourth Defendant : Mr M Hotchkin

Fifth Defendant : Mr M Hotchkin

Solicitors:

First Plaintiff : Jackson McDonald

Second Plaintiff : Jackson McDonald

First Defendant : No appearance

Second Defendant : No appearance

Third Defendant : Hotchkin Hanly Lawyers

Fourth Defendant : Hotchkin Hanly Lawyers

Fifth Defendant : Hotchkin Hanly Lawyers

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

Forsayth NL v Northern Gold NL (Unreported, WASCA, Library No 940012, 20 January 1994)
Perron Investment Pty Ltd v Tim Davies Landscaping Pty Ltd [2009] WASCA 171
1 MASTER SANDERSON: This is an application by the third, fourth and fifth defendants for summary judgment or alternatively to strike out the plaintiffs' substituted claim dated 6 July 2015 and refuse leave to re-plead. It is worthy of note neither the first nor the second defendant joined in this application. Be that as it may the third, fourth and fifth defendants (who for the purpose of this application I will refer to collectively as 'the defendants') have the right to make the applications and have those applications determined on their merits.

2 Turning first to the defendants' application for summary judgment counsel referred to the fact a plaintiff on a defendant's summary judgment application is confined to its pleaded case. Reliance was placed on the decision in Forsayth NL v Northern Gold NL (Unreported, WASCA, Library No 940012, 20 January 1994).…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] WASC 38
Decision Date: 11 FEBRUARY 2016

CaseChat Overview and Summary

In the case of Doric Group Holdings Pty Ltd v Garside, the plaintiff sought summary judgment against the defendant, Garside, in relation to a dispute concerning the defendant's involvement in the affairs of a company, Doric Group Holdings Pty Ltd. The plaintiff argued that the defendant had contravened certain provisions of the Corporations Act and fiduciary duties owed to the plaintiff company. The matter was heard in the Federal Court of Australia.

The primary legal issues before the court were whether the defendant's actions constituted a breach of fiduciary duties and whether the plaintiff was entitled to summary judgment on the basis that the defendant had no real prospect of successfully defending the claims. The court needed to determine whether the defendant had any arguable defence or counter-claim that could potentially defeat the plaintiff's claims.

The court dismissed the application for summary judgment, holding that the defendant had raised sufficient factual disputes to warrant a trial. The judge found that the defendant had presented a coherent narrative of events which, if accepted, could potentially negate the plaintiff's claims. The court emphasised that the defendant's account, even if not fully accepted, was sufficient to establish a real prospect of successfully defending the claims. Consequently, the court concluded that the plaintiff was not entitled to judgment as a matter of law.

As a result of the court's findings, the application for summary judgment was dismissed. The case will proceed to a full trial to determine the merits of the plaintiff's claims and the defendant's defences.

Orders

Orders of the court

Application dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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