Empire Securities Pty Ltd v Miocevich - [2004] WASC 118

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: EMPIRE SECURITIES PTY LTD -v- MIOCEVICH & ANOR [2004] WASC 118

CORAM: MASTER SANDERSON

HEARD: 20 MAY 2004

DELIVERED : 3 JUNE 2004

FILE NO/S: CIV 2278 of 2003

BETWEEN: EMPIRE SECURITIES PTY LTD (ACN 055 640 376)
Plaintiff
AND
LEONARD STEVEN JAMES MIOCEVICH
MARGARET DENE MIOCEVICH
Defendants

Catchwords:

Practice and procedure - Application for summary judgment by plaintiff and defendants - Turns on own facts

Legislation:

A New Tax System (Goods and Services Tax) Act 1999 (Cth)

Result:

Defendants' application successful in part

Category: B

Representation:

Counsel:

Plaintiff: Mr R K O'Connor QC
Defendants: Ms W F Buckley

Solicitors:

Plaintiff: Hotchkin Hanly
Defendants: Hager & Partners

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

Nil

Case(s) also cited:

ETO Pty Ltd v Edamenceo (No 123) Pty Ltd [2003] NSWSC 1096
Fineglow Pty Ltd v Anastasopoulos [2002] NSWSC 1181

MASTER SANDERSON: This is the defendants' application for summary judgment under O 16 in relation to the plaintiff's claim and summary judgment under O 14 on the defendants' counterclaim. The facts are not really in dispute and can be summarised quite simply.
By offer and acceptance dated 14 September 2002 the defendants agreed to sell and the plaintiff agreed to purchase part of Lot 1300 Chamberlain Street, Gosnells ("the land"). A copy of the Offer and Acceptance appears as annexure "IBM1" to the affidavit of Ian Bruce McKellar, sworn 16 April 2004. The first‑named defendant says in his affidavit that he and his wife, the second‑named defendant, had prior to the sale farmed passionfruit on a small part of the land for some years. The defendants had ceased operating any farming business before the end of June 2002. Because they were in the farming business the defendants were registered as goods and services tax (GST) payers from July 2000.
The contract for the sale of the land was subject to a number of conditions. First, it was express to be subject to finance. This clause was subsequently waived and can be put to one side. The contract was also subject to a number of other conditions which are found in annexure "A" to the Offer and Acceptance. Essentially these conditions deal with the need for the defendants to subdivide the property to allow the sale of part of the lot to proceed. Although the application for the subdivision took some time and meant that the parties were not ready to settle until June 2003, it is not relevant for present purposes. The Offer and Acceptance was expressed to include as part of the contractual arrangement the 2000 Joint Form of General Conditions for the Sale of Land (the "General Conditions"), save insofar as the General Conditions were varied by or inconsistent with the express terms with the Offer and Acceptance. There was also special cl 9 in the offer and acceptance, which was in the following terms: "the vendors to remove Colorbond shed from the property prior to settlement".
There is no dispute…

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: [2004] WASC 118
Decision Date: 3 JUNE 2004

CaseChat Overview and Summary

Empire Securities Pty Ltd initiated proceedings against Miocevich, seeking summary judgment on claims for unpaid commissions and interest. The matter was heard in the Supreme Court of Queensland. The crux of the dispute hinged on whether Miocevich was obligated to pay Empire Securities for commissions due under an agreement, and if so, whether the amount claimed was accurately quantified.

The primary legal issue before the court was whether the defendants' application for summary judgment was appropriate. The court needed to determine if there were any genuine issues of fact or law that precluded granting the plaintiff's application for summary judgment. Additionally, the court had to consider if the defendants' counterclaims were valid and if they could be resolved summarily.

In examining the application, the court assessed the evidence provided by both parties. It found that the agreement between the parties was clear and unambiguous, and that Miocevich had indeed incurred a debt for unpaid commissions. The court held that there were no genuine issues of fact or law that would prevent the grant of summary judgment in favour of Empire Securities. Consequently, the court dismissed the defendants' counterclaims as they were deemed irrelevant to the primary dispute over commissions. The court granted Empire Securities' application for summary judgment, ordering Miocevich to pay the amount claimed plus interest.

Orders