Foster v Srdinsek
[2017] WASC 347
•30 NOVEMBER 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: FOSTER -v- SRDINSEK [2017] WASC 347
CORAM: ACTING MASTER STRK
HEARD: 29 JUNE 2017
DELIVERED : 30 NOVEMBER 2017
FILE NO/S: CIV 2755 of 2016
BETWEEN: SANDRA KATHLEEN FOSTER
Plaintiff
AND
ANITA GAY SRDINSEK
Defendant
Catchwords:
Practice and procedure - Application for summary judgment - Turns on own facts
Legislation:
Property Law Act 1969 (WA)
Residential Tenancies Act 1987 (WA)
Result:
Judgment for the plaintiff
Category: B
Representation:
Counsel:
Plaintiff: Mr C Zagami
Defendant: In person
Solicitors:
Plaintiff: Frichot & Frichot
Defendant: In person
Case(s) referred to in judgment(s):
Esanda Finance Corporation Ltd v Spence Financial Group Pty Ltd [2006] WASC 177
Jacka Nominees Pty Ltd (in liq) v Edwards Karwacki SMI (Unreported, WASC, Library No 920512, 12 October 1992)
Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598
White v Johnston (1886) 8 ALT 53
ACTING MASTER STRK: By chamber summons filed 19 April 2017 the plaintiff seeks summary judgment.
Background
The plaintiff is the registered proprietor of property at 16 Settler Way, Edgewater, Western Australia (the property), and the defendant is the daughter of the plaintiff.
In summary, the plaintiff claims that in or around March 2015, the plaintiff and the defendant agreed that the defendant be allowed to occupy and live in the property. The plaintiff says that the agreement was a verbal agreement and was made on the following terms:
•in the event the plaintiff wished to sell or subdivide the property in the future, the defendant was to vacate the property upon receipt of notice from the plaintiff of her desire to sell or subdivide;
•there was to be no rent payable; and
•the occupancy was for an uncertain duration and otherwise determinable by either party giving reasonable prior notice.[1]
[1] Plaintiff's statement of claim, filed 24 November 2016, particulars to [3].
The plaintiff says that pursuant to the agreement, the defendant moved into the property in or around mid to late March 2015; that the plaintiff issued a notice in writing to the defendant dated 30 August 2016 terminating the defendant's tenancy as of 30 September 2016, which notice was issued pursuant to s 72 of the Property Law Act 1969 (WA); and despite the notice of termination and numerous demands by the plaintiff, the defendant wrongfully remains in possession of the property and continues to refuse to vacate the property.
By these proceedings the plaintiff seeks a declaration that the tenancy with respect to the property was terminated on 30 September 2016 and an order for the defendant to deliver up vacant possession of the property to the plaintiff pursuant to s 72 of the Property Law Act, together with costs.
The proceedings were commenced by a writ of summons filed on 7 October 2016. The defendant appears in person in this matter and filed an appearance on 17 October 2016. The defendant sought to rely on an affidavit in response filed on 23 November 2016, which was struck out by the case management registrar and ordered to be removed from the file. A statement of claim was filed on 24 November 2016 and at a status conference on 15 February 2017, the case management registrar ordered that unless by 4.00 pm on Wednesday 15 March 2017 the defendant comply with case management directions previously made by the filing and serving of a defence, the plaintiff would have leave to enter judgment for the relief sought in the statement of claim. On 14 March 2017 the defendant filed a document titled 'statement of response', by way of defence.
From the pleadings filed, it can be discerned that there is no contest that the plaintiff is the registered proprietor of the property; that the defendant is the daughter of the plaintiff; that in or around March 2015 the plaintiff and the defendant agreed that the defendant be allowed to occupy and live in the property; and that the agreement was verbal. Where the parties disagree is as follows.
The defendant disputes that the occupancy is for an uncertain duration and otherwise determinable by either party giving reasonable prior notice. Rather, the defendant says that:[2]
[T]he agreement was between the Plaintiff and myself that I reside in the property at 16 Settler Way, Edgewater WA 6027 (The Property) until my property settlement with my ex - partner is settled in the Family Court of Western Australia. The date for the Trial in the Family Court is due this year, all paperwork is drafted in relation to the said trial.
[2] Defendant's statement of response, filed 14 March 2017 [2].
As to the circumstances by which the defendant came to occupy the property, the defendant says:[3]
This agreement was made after I was forced from my previous address situated at 11a Parker Street, East Fremantle; where the Plaintiff was entrusted with my house keys and subsequently stole my belongings and my home was sold while I was overseas. This move also made it difficult to see my daughter who was 6 years old.
The Courts should know that upon my return to Australia, I was forced to move to my mother's address, as reasons stated in paragraph 3. I had contacted the police regarding my stolen and/or destroyed property, and they informed me that it was a civil matter, and could not press charges. As stated, I never moved to that property; I was forced to. The plaintiff is deliberately misleading the Court with that statement
[3] Defendant's statement of response, filed 14 March 2017 [3] ‑ [4].
In support of the application for summary judgment the plaintiff relies on the affidavit of the plaintiff sworn 13 April 2017; the affidavit of Carmelo Zagami (a solicitor instructed on behalf of the plaintiff), sworn 18 April 2017; together with the plaintiff's submissions for hearing filed 26 June 2017; and the plaintiff's further submissions filed after the hearing on 14 July 2017 pursuant to directions made at the hearing.
In opposition to the application for summary judgment, the defendant relies upon her affidavit sworn 9 May 2017 together with her written outline of submissions filed after the hearing on 24 July 2017 (again, pursuant to directions made at the hearing).
Adequacy of conferral
Order 59 r 9(1) of the Rules of the Supreme Court 1971 (WA) provides that no order shall be made on an application in chambers unless the application was filed with a memorandum stating:
(a)that the parties have conferred to try to resolve the matters giving rise to the application; and
(b)the matters that remain in issue between the parties.
In his affidavit sworn 18 April 2017, Mr Zagami refers to such a memorandum and states that he believed the facts referred to in the memorandum filed in support of the application to be true.
While it appears that the plaintiff's solicitor prepared a memorandum dated 13 April 2017, he failed to file the same with the plaintiff's application for summary judgment, as was confirmed by Mr Zagami at the hearing. A copy of the memorandum was only provided to the court after the hearing.
Order 59 r 9 is not only concerned with the filing of a memorandum, but with substantive conferral. As is made clear in Consolidated Practice Direction 4.3.2, O 59 r 9 of the Rules of the Supreme Court requires that parties confer in the sense of their being an exchange of views for the purpose of trying to resolve the matters in issue. Conferral is required no matter how unlikely it is that the parties will reach agreement or even narrow the issues between them.
By the memorandum dated 13 April 2017, the solicitors for the plaintiff certify that the parties have conferred to try to resolve the matters giving rise to the application as follows:[4]
1.1On 30 August 2016 the Plaintiff's solicitors served upon the Defendant via both email and post a termination notice in relation to the occupancy of the Property by the Defendant, together with a covering letter and a covering email, advising the Defendant that her right to occupy the Property was hereby terminated pursuant to section 72 of the Property Law Act1969.
1.2On 2 September 2016 the Plaintiff's solicitors received an email from the Defendant advising that there was a conflict of interest in the Plaintiff's solicitors acting for the Plaintiff against the Defendant in this matter.
1.3On 2 September 2016 the Plaintiff's solicitors had a telephone conversation with the Defendant, (such conversation which was subsequently reiterate to the Defendant by way of email from the Plaintiffs solicitors to the Defendant on the same date), whereby the Plaintiff's solicitors advised the Defendant that in the circumstances there was no actual or perceived conflict of interest in the Plaintiff's solicitors acting for the Plaintiff in the matter. No response was received from the Defendant.
1.4On 6 September 2016 the Plaintiff's solicitors emailed the Defendant querying when she was likely to be vacating the Property. No response was received from the Defendant.
1.5On 25 November 2016 the Plaintiff's solicitors served upon the Defendant via email the Plaintiff's Statement of Claim.
[4] Memorandum of conferral, dated 13 April 2017 [1.1] ‑ [1.5].
It was not appropriate for the plaintiff's solicitors to certify that the parties had conferred to try to resolve the matters giving rise to the application based on the communications described at [1.1] ‑ [1.5] above. That may explain why the memorandum was not filed with the application. No reason was proffered. Neither the memorandum nor the evidence filed on behalf of the plaintiff establishes that there was conferral in the sense of their being an exchange of views for the purpose of trying to resolve the matters in issue.
Order 59 r 9(2) provides that the court may waive the operation of sub‑rule (1) in a case of emergency or for other good reason.
Taking into account all of the circumstances, I find that the application does not fail by reason of the same. Having regard to the issues raised by the defendant, it was unlikely that a face to face meeting or conferral by telephone would have resulted in a substantive narrowing of the issues as between the parties or any resolution so as to avoid the matter proceeding to a hearing of the summary judgment application.
Leave to apply out of time
The plaintiff seeks leave to bring the application for summary judgment out of time. It is well established that there are no set guidelines as when leave to apply for summary judgment out of time will be granted and the burden is on the applicant to show the delay is justifiable in all of the circumstances.[5]
[5] Jacka Nominees Pty Ltd (in liq) v Edwards Karwacki SMI (Unreported, WASC, Library No 920512, 12 October 1992) (Adams M).
At [14] of the plaintiff's affidavit sworn on 13 April 2017, the plaintiff deposes that she is informed by her solicitors 'that the reason this application is out of time is because there has been extensive conferral between [her solicitors] and the Defendant that has occurred over a period of time but which has ultimately been unsuccessful'. No particulars of that extensive conferral are proffered by the plaintiff.
In his affidavit sworn on 18 April 2017, Mr Zagami provides a chronology which explains the conduct of the proceedings up to late November 2016. As explained above, Mr Zagami at [4] of his affidavit also deposes that the facts referred to in the O 59 r 9 memorandum of conferral to be true. However, the memorandum of conferral only describes communications up to 25 November 2016, whereas the application for summary judgment was filed on 19 April 2017.
The plaintiff has failed to explain the delay and to show the delay is justifiable in all of the circumstances.
However, there is no evidence of any particular prejudice resulting from the delay. In the circumstances, although the delay is not adequately explained, it is not fatal to the plaintiff's application.
Application of the Residential Tenancies Act 1987 (WA)
The plaintiff's application for summary judgment assumes that the rights and obligations of the parties are governed by the Property Law Act, and not the Residential Tenancies Act 1987 (WA).
The submissions filed by the parties did not address whether the agreement was a residential tenancy agreement for the purpose of the Residential Tenancies Act. During the course of the hearing, counsel for the plaintiff pressed that the agreement was not a residential tenancy agreement for the purpose of the Residential Tenancies Act, because first, the agreement was not in writing; and secondly, no rent was being paid by the defendant to the plaintiff.
The fact that the agreement was not in writing is not determinative, as is made clear by s 3 of the Residential Tenancies Act, which defines a residential tenancy agreement to mean any agreement, whether or not in writing and whether express or implied, under which any person for valuable consideration grants to any other person a right to occupy, whether exclusively or otherwise, any residential premises, or part of residential premises, for the purpose of residence.
In this case, the real question is whether the agreement granted to the defendant a right to occupy for valuable consideration.
In determining this question, I note that it was never intended that, when the facts are in dispute, actions should be disposed of summarily,[6] and the court does not dispose of the factual merits on a conflict of affidavits. However, after giving careful consideration to the evidence before me, I find that terms of the agreement did not contemplate the grant of the right to occupy for valuable consideration. Further, the circumstances by which the defendant says she came to occupy the property (reproduced at [9] above), cannot amount to valuable consideration - and in this regard, I find that there is no plausible contention requiring investigation.
[6] White v Johnston (1886) 8 ALT 53.
I am therefore satisfied that the plaintiff's assumption that the rights and obligations of the parties are governed by the Property Law Act, and not the Residential Tenancies Act, was sound.
Prima facie case established
Section 72(1) of the Property Law Act provides as follows:
Without prejudice to any other lawful mode of termination available or to any express agreement by the parties to a periodic tenancy or tenancy of uncertain duration as to its termination, a periodic tenancy or a tenancy of uncertain duration may be terminated by one month's written notice by either party thereto to the other expiring at any time whether at the end of a rent period or not.
A notice dated 30 August 2016 was in fact issued to on behalf of the plaintiff to the defendant pursuant to s 72 of the Property Law Act, giving the defendant notice of termination of her tenancy of the property of not less than one month.
From the affidavits filed on behalf of the plaintiff, I am satisfied that the plaintiff's claim is a good one and that the affidavits do verify the essential elements of the cause of action on which the application for summary judgment is based.
Once the plaintiff has established a prima facie case, the evidentiary onus shifts to the defendant to demonstrate that there is an arguable defence or other reason for trial.
The defendant's position
As explained above, the defendant says that:[7]
[T]he agreement was between the Plaintiff and myself that I reside in the property at 16 Settler Way, Edgewater WA 6027 (The Property) until my property settlement with my ex ‑ partner is settled in the Family Court of Western Australia. The date for the Trial in the Family Court is due this year, all paperwork is drafted in relation to the said trial.
[7] Defendant's statement of response, filed 14 March 2017 [2].
The defendant disputes that the occupancy is for an uncertain duration and determinable by either party giving reasonable prior notice pursuant to s 72(1) of the Property Law Act. Rather, the defendant contends that the agreement was for a duration capable of being rendered certain by reference to the proceedings in the Family Court.
The application for summary judgment turns on whether there is any triable issue as to the application of s 72(1) of the Property Law Act to the circumstances of this case.
The power to order summary judgment must be exercised with great care, particularly where the ultimate outcome turns upon the resolution of some dispute or issues of fact.[8] However, taking the defendant's case at its highest, I do not consider that there is any triable issue.
[8] Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598, cited in Esanda Finance Corporation Ltd v Spence Financial Group Pty Ltd [2006] WASC 177 [43].
A tenancy at will is created where there is no agreement as to duration and, usually, no agreement as to the payment of rent. Such a tenancy may be contrasted to a lease for a fixed term, which must be for a certain duration and which comes to an end automatically at the expiration of the fixed period.[9]
[9] Moore A, Grattan S & Griggs L, Bradbrook, MacCallum & Moore's, Australian Real Property Law (6th ed) [2.155], [2.165].
In this case (and for the purpose of determining the summary judgment application, accepting the defendant's contention reproduced at [35] above), the term of the agreement as between the plaintiff and the defendant could not be identified from its inception. This is not a case where the maximum period of duration is certain but may come to an end before that.
As the term of the agreement could not be identified from its inception, the duration of the term of the agreement is therefore uncertain, and is not capable of being rendered certain by reference to the defendant securing a property settlement or otherwise concluding proceedings in the Family Court.
On the evidence before me, the agreement cannot be characterised as a fixed term tenancy, nor as a periodic tenancy. Rather, it is a tenancy of uncertain duration and capable of being terminated by one month's written notice. There is no triable issue as to the application of s 72(1) of the Property Law Act to the circumstances of this case.
Judgment and costs
In all of the circumstances, I am satisfied that the defendant has no defence to the claim and that the plaintiff is entitled to judgment.
As to the question of costs, an unjustified delay in bringing the application for summary judgment may deprive the applicant of some of its costs, as may the failure to substantively confer before making the application. However, in circumstances where:
(a)there is no evidence of any particular prejudice resulting from the plaintiff's delay in bringing the application; and
(b)it was unlikely that a face‑to‑face meeting or conferral by telephone would have resulted in a substantive narrowing of the issues between the parties or resolution so as to avoid the matter proceeding to a hearing of the summary judgment application,
I do not propose to make an order depriving the plaintiff of her entitlement to her costs on judgment.
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