FRANMARINE Underwater Services Pty Ltd v KAPELI

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   FRANMARINE UNDERWATER SERVICES PTY LTD -v- KAPELI [2008] WASC 84

CORAM:   MASTER SANDERSON

HEARD:   10 APRIL 2008

DELIVERED          :   14 MAY 2008

FILE NO/S:   CIV 2009 of 2007

BETWEEN:   FRANMARINE UNDERWATER SERVICES PTY LTD (ACN 059 653 459)

Plaintiff

AND

DAVID BRIAN TAUFA KAPELI
First Defendant

INA SOPHIA KAPELI
Second Defendant

HARBOROUGH NOMINEES PTY LTD (ACN 008 931 191)
Third Defendant

Catchwords:

Summary judgment - Claim by company against former director - Turns on own facts

Legislation:

Nil

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Plaintiff:     Mr S K Shepherd

First Defendant              :     Mr A M Prime

Second Defendant         :     Mr A M Prime

Third Defendant            :     No appearance

Solicitors:

Plaintiff:     Durack & Zilko

First Defendant              :     McCallum Donovan Sweeney

Second Defendant         :     McCallum Donovan Sweeney

Third Defendant            :     No appearance

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

Nil

1. MASTER SANDERSON:  This is the plaintiff's application for summary judgment on part of its claim against the defendants.  The plaintiff relies upon two affidavits of Roger Wayne Dyhrberg (Mr Dyhrberg), the first sworn 8 February 2008 and the second sworn 31 March 2008.  In response, the first and second defendants rely on an affidavit of the first defendant sworn 20 March 2008.  The statement of claim was filed on 5 October 2007.  Leave was required to bring this application out of time.  There being no objection, leave was granted.

2. The background facts to this application can be shortly stated.  The plaintiff is in the business of providing commercial diving and underwater services.  Mr Dyhrberg is a director of the plaintiff and has been a director since 17 April 1993.  The first defendant was a director of the plaintiff from 12 September 2001 until 30 March 2007.  The second defendant is the wife of the first defendant and has had no involvement in managing the affairs of the plaintiff, nor has she been involved in any other capacity.  There are 400 shares in the plaintiff on issue.  Each of Mr Dyhrberg and the first defendant either own or control half the shares.

3. During the time the first defendant was a director of the plaintiff, he was responsible for its management.  The role of Mr Dyhrberg was to carry out and supervise the diving operations and services provided by the plaintiff and to quote and tender for work.  While both Mr Dyhrberg and the first defendant were working for the plaintiff, they were each paid a salary of $80,000 together with a car allowance.  In addition, it would appear that the following expenses were paid for by the plaintiff:

   1.the home telephone accounts of both Mr Dyhrberg and the first defendant as many of the phone calls made related to the plaintiff's business;

   2.motor vehicle expenses for both Mr Dyhrberg and the first defendant as these vehicles were used extensively for carrying out business of the plaintiff;

   3.fuel expenses of Mr Dyhrberg and his wife and the first defendant;

   4.the home power bills and…