Fiji Holdings Pty Ltd v Bocso
[2000] WASC 14
•3 FEBRUARY 2000
FIJI HOLDINGS PTY LTD -v- BOCSO [2000] WASC 14
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASC 14 | |
| Case No: | CIV:2011/1999 | 14 DECEMBER 1999 | |
| Coram: | ACTING MASTER CHAPMAN | 3/02/00 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Conditional leave to defend granted | ||
| PDF Version |
| Parties: | FIJI HOLDINGS PTY LTD ROLAND CHARLES BOCSO |
Catchwords: | Practice and procedure Summary judgment Guarantee Validity of demand Whether the document executed was a deed Undue influence |
Legislation: | Transfer of Land Act 1893, s 85 Rules of the Supreme Court, O 14 |
Case References: | Nil Allcard v Skinner [1887] 36 Ch D 145 Australia and New Zealand Banking Group Ltd v Cooper (1993) 9 WAR 112 Bond v Hong Kong Bank of Australia (1991) 25 NSWLR 286 Bunbury Foods Pty Ltd & Anor v National Bank of Australasia Ltd & Anor (1984) 153 CLR 491 Commonwealth Bank of Australia v Ranford, unreported; SCt of WA (Master Adams); Library No 940706; 8 December 1994 Dean and Westham Holdings Pty Ltd v Lloyd (1990) 3 WAR 235 Donnelly v National Bank, unreported; FCt SCt of WA; Library No 920283; 19 May 1992 FJ Richards Pty Ltd v Mills Pty Ltd [1995] 1 Qd R 1 Lau v Leff (1968) 87 WN (Pt 2) NSW 305 Reid Murray Holdings Ltd (In Liq) v David Murray Holdings Pty Ltd [1972] 5 SASR 386 Xenos v Wickham (1866) LR 2 HL |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
ROLAND CHARLES BOCSO
Defendant
Catchwords:
Practice and procedure - Summary judgment - Guarantee - Validity of demand - Whether the document executed was a deed - Undue influence
Legislation:
Transfer of Land Act 1893, s 85
Rules of the Supreme Court, O 14
Result:
Conditional leave to defend granted
(Page 2)
Representation:
Counsel:
Plaintiff : Mr R M Wilenski
Defendant : Mr M A Atkinson
Solicitors:
Plaintiff : Fiocco Hopkins Nash
Defendant : Healy Pynt
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Allcard v Skinner [1887] 36 Ch D 145
Australia and New Zealand Banking Group Ltd v Cooper (1993) 9 WAR 112
Bond v Hong Kong Bank of Australia (1991) 25 NSWLR 286
Bunbury Foods Pty Ltd & Anor v National Bank of Australasia Ltd & Anor (1984) 153 CLR 491
Commonwealth Bank of Australia v Ranford, unreported; SCt of WA (Master Adams); Library No 940706; 8 December 1994
Dean and Westham Holdings Pty Ltd v Lloyd (1990) 3 WAR 235
Donnelly v National Bank, unreported; FCt SCt of WA; Library No 920283; 19 May 1992
FJ Richards Pty Ltd v Mills Pty Ltd [1995] 1 Qd R 1
Lau v Leff (1968) 87 WN (Pt 2) NSW 305
Reid Murray Holdings Ltd (In Liq) v David Murray Holdings Pty Ltd [1972] 5 SASR 386
Xenos v Wickham (1866) LR 2 HL
(Page 3)
1 ACTING MASTER CHAPMAN: The plaintiff by way of chamber summons filed on 30 December 1999 seeks summary judgment against the defendant. The plaintiff submits that the affidavits filed on behalf of the plaintiff establish all of the elements of a cause of action against the defendant.
2 Affidavits have been filed to support the defendant's objections to the application. Counsel for the plaintiff objected to certain paragraphs of the affidavit of the defendant. On the announcement of the objections counsel for the defendant complained that he had no notice of the objections. Whilst I accept the submission of counsel for the plaintiff that there is no rule requiring notice of objections, I would have thought that such a course was not within the spirit of case management, particularly in an application such as summary judgment.
3 Counsel for the defendant argues that the notices of demand dated 3 September 1999 found at pages 151 - 156 of the affidavit of Mr Nikolaenko are defective. The basis for this contention has several limbs. Firstly, it is contended that there are no particulars of the loan agreement. Secondly, there is no evidence that the certificate was signed in accordance with par 8(12). Thirdly, it is argued the dates on which the advances were made are not accurate. Fourthly, one of the notices indicates incorrectly that the loan was to the defendant.
4 For myself I would not have thought the lack of particulars of the loan agreement would be fatal. Each notice refers to the document upon which it is based and each of those documents set out the position with sufficient detail. The other issues raised are arguable but in my view are unlikely to succeed.
5 Counsel for the defendant further argues that it would be open to a trial court to consider whether the defendant wished to execute the mortgage documents as deeds given the circumstances in which they were executed and his belief as to the enforcement provisions. It is submitted that if he succeeds the mortgage documents are not deeds and as the consideration in relation to them is illusory the defendant would have an arguable defence. Further, it is contended that undue influence was exerted on the defendant to sign the guarantees.
6 The defendant contends that he was not given any time or opportunity to consider the documents and whether he wished to execute the documents as deeds. It is submitted the mere signature is insufficient in these circumstances to establish his specific intention. The defendant
(Page 4)
- further maintains that at the time he signed the documents he believed they were not enforceable in the circumstances in which they are now sought to be enforced.
7 I am of the view the defendant will have difficulty in establishing his position at trial. In the first place, he is not a novice in the business world. He annexes to his affidavit, sworn on 4 November 1999, two prospectuses. In each he is essentially described as:
"Accountant and Company Secretary
Roland is a founding partner of the accounting and auditing firm Bocso Massese and has practised as a partner in the firm for the past 28 years.
He has had 19 years of experience with the management of public companies in the finance, metals exploration and mining industries and has served as a director to a number of those companies.
He has been involved in the start up, management and listing of a general finance company on the Australian Stock Exchange and in the setting up and restructuring of several corporations.
Roland has extensive experience in accounting and the secretarial requirements of both private and public corporations."
8 He does not take issue with the description in his affidavit. Accepting that the description is correct I would have thought the defendant would be hard pressed to convince a court that he did not intend the documents to be deeds and enforceable in their terms even if it is established that he chose not to read the documents before he signed them. For the same reason I consider the defendant will find it difficult to establish that he was the subject of undue influence given the particular circumstances of this matter. Further, I am not persuaded that the interpretation of s 85 of the Transfer of Land Act for which the defendant contends will necessary succeed.
9 Having said that, I am conscious of the fact that the power to order summary judgment should be exercised with great care and should never be exercised unless it is clear there is no real question to be tried. In the matter before me there are a number of matters in contention which in my view should properly be ventilated at trial. Having said that, I am of the
(Page 5)
- view that the defences raised by the defendant are shadowy and that leave to defend should be given conditional upon the defendant giving an appropriate security.
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