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First Industry Corp v Goh

First Industry Corp v Goh

Case [2003] WASC 216 11 November 2003

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FIRST INDUSTRY CORP -v- GOH & ANOR [2003] WASC 216

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASC 216
Case No:	CIV:1301/2002	Heard:	15 SEPTEMBER 2003
Coram:	MASTER SANDERSON	Delivered:	11/11/03
No of pages:	9	Judgment Part:	1 of 1
Result:	Judgment entered for crossclaimant
Category:	B
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Parties:	FIRST INDUSTRY CORP BEAN SAN GOH STEVEN WERN-YI GOH FIRST INDUSTRIES CORP HEALTHY SKIN PTE LTD
Catchwords:	Practice and procedure Application for summary judgment Proper interpretation of loan agreement Turns on own facts
Legislation:	Nil
Case References:	First Industry Corp v Goh & Anor [2002] WASC 143 Meehan v Jones (1981) 149 CLR 571 Montagu v Earl of Sandwich (1885) 32 Ch D 525 Re Roberts; Ex parte Australian Telecom Employees Credit Cooperative v Taylor (1982) 84 FLR 88 White v Conroy (1921) 21 SR (NSW) 257 Evans Deakin & Co Pty Ltd v Kiaiser Engineers and Constructors Inc [1968] Qd R 378 Evans v Bartlam (HL) (1937) 2 All ER 646 Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 Harper v Gray & Walker (A firm) & Ors [1985] 1 WLR 1196 L'Estrange v F Graucob Ltd [1934] 2 KB 394 Pitman v Crum Ewing (1911) AC 217 R A Lister & Co Shipping & Ors v E G Thomson (Shipping) Ltd & Anor (No 2) [1987] 1 WLR 1614 St Andrews Property Holdings Pty Ltd v Harfouche, unreported; SCt of WA; Library No 7926; 8 November 1989 Stott v West Yorkshire Road Car Co Ltd (1971) 3 All ER 534 Symon & Co v Palmer Stores (1903) Ltd [1912] 1 KB 259 The State of Western Australia v Rothmans of Pall Mall (Aust) Ltd [2001] WASCA 25

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : FIRST INDUSTRY CORP -v- GOH & ANOR [2003] WASC 216 CORAM : MASTER SANDERSON HEARD : 15 SEPTEMBER 2003 DELIVERED : 11 NOVEMBER 2003 FILE NO/S : CIV 1301 of 2002 BETWEEN : FIRST INDUSTRY CORP

Plaintiff

AND

BEAN SAN GOH

First Defendant

STEVEN WERN-YI GOH

Second Defendant

HEALTHY SKIN PTE LTD

Third Party

(BY ORIGINAL ACTION)

FIRST INDUSTRIES CORP

Cross-claimant

AND

BEAN SAN GOH

Cross-defendant

(BY CROSS-CLAIM IN THIRD PARTY PROCEEDINGS)

(Page 2)

Catchwords:

Practice and procedure - Application for summary judgment - Proper interpretation of loan agreement - Turns on own facts

Legislation:

Nil

Result:

Judgment entered for crossclaimant

Category: B

Representation:

Original Action

Counsel:

Plaintiff : Mr O D Feinauer

First Defendant : Mr M J McPhee

Second Defendant : No appearance

Third Party : Mr M D Cuerden

Solicitors:

Plaintiff : Feinauer & Associates

First Defendant : Michell Sillar McPhee

Second Defendant : No appearance

Third Party : Tang Lawyers

(Page 3)

Cross-claim in Third Part Proceedings

Counsel:

Cross-claimant : Mr O D Feinauer

Cross-defendant : Mr M J McPhee

Solicitors:

Cross-claimant : Feinauer & Associates

Cross-defendant : Michell Sillar McPhee

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

First Industry Corp v Goh & Anor [2002] WASC 143
Meehan v Jones (1981) 149 CLR 571

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.

Continue reading First Industry Corp v Goh

Details

AGLC: First Industry Corp v Goh [2003] WASC 216
Case: [2003] WASC 216
Decision Date

CaseChat Overview and Summary

This case involved the parties in a dispute over a loan agreement and the provision of security over shares in a company. The plaintiff, First Industry Corp, had previously obtained a summary judgment against the first defendant, Bean San Goh, for the recovery of a loan amount and interest. The dispute now focused on the interpretation of a clause in the loan agreement, which provided for the arrangement of security over shares in Sanford Ltd. The cross-claimant, First Industry Corp, sought a declaration that the first defendant should provide security over the shares and that the funds held in a joint account be retained until the security was provided. The cross-defendant, Bean San Goh, argued that the clause was void for uncertainty and did not create an equitable mortgage over the shares.

The court examined the clause in question, which stated that the borrower would arrange for the loan to be secured by shares in Sanford Ltd registered in the borrower's name or in the name of Healthy Skin Pte Ltd. The court found that the clause, while not well drafted, was clear in its intention to require the borrower to provide security over the shares held by Healthy Skin if called upon to do so. The court also held that the clause created an equitable charge over the shares held by Healthy Skin, which arose when the cross-claimant made a demand for security.

Given the agreement reached between the parties to liquidate the shares and hold the proceeds in a joint account, the court found that the cross-claimant was entitled to the funds held in the joint account. The court entered judgment for the cross-claimant and directed the parties to discuss the form of orders and costs.

Orders