Gazis v DAVIES - [2021] WADC 67

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   GAZIS -v- DAVIES [2021] WADC 67
CORAM:   REGISTRAR HOGAN
HEARD:   11 JUNE 2021
DELIVERED          :   7 JULY 2021
FILE NO/S:   CIV 4613 of 2020
BETWEEN:   ANASTASIA BERTHA GAZIS
Plaintiff
AND
CHRISTOPHER PAUL DAVIES
First Defendant
KIM DAVIES
Second Defendant

Catchwords:

Practice and procedure - Application to strike out parts of the statement of claim - Application for summary judgment

Legislation:

Rules of the Supreme Court 1971 (WA)

Result:

Application for summary judgment dismissed
Statement of claim struck out

Representation:

Counsel:

Plaintiff	:	Mr D J Morris
First Defendant	:	Mr D K Zusman
Second Defendant	:	Mr D K Zusman

Solicitors:

Plaintiff	:	HHG Legal Group
First Defendant	:	Bennett & Co
Second Defendant	:	Bennett & Co

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

Banque Commerciale SA, (En Liqn) v Akhil Holdings Ltd [1990] HCA 11
Bruce and Odhams Press Ltd [1936] 1 KB 697
Charlie Carter Pty Ltd v Shop, Distributive and Allied Employees' Association of Western Australia (1987) 13 FCR 413; (1987) 21 IR 112; ATPR (Digest) 46-021
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87

REGISTRAR HOGAN:

By application 12 May 2021 the defendants sought orders:
1.Pursuant to O 16 r 1 of the Rules of the Supreme Court 1971 (WA) (Rules) summary judgment be granted in favour of the defendants; or alternatively
2.Pursuant to O 20 r 19 of the Rules, pars 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 21 and 22 of the plaintiff's further amended statement of claim dated 12 March 2021 be struck out on the grounds that they:
2.1do not disclose a reasonable cause of action; and/or
2.2are scandalous, frivolous or vexatious; and/or
2.3are otherwise an abuse of the process of the court.
3.The plaintiff pay the defendants' costs of this application and, in the event that summary judgment is granted the costs of the action, on an indemnity basis, alternatively on a party/party basis to be assessed if not agreed and payable forthwith.
The defendants filed a submission dated 25 May 2021 and the following affidavits in support of the application:
1.Affidavit of Kim Davies sworn 15 March 2021.
2.Second affidavit of Kim Davies affirmed 27 April 2021.
3.Affidavit of Christopher Paul Davies affirmed 15 March 2021.
4.Affidavit of Gregory Jerome Williams sworn 15 March 2021.
5.Affidavit of Jessica Sara Chapman affirmed 15 March 2021.
6.Second affidavit of Jessica Sara Chapman affirmed 10 May 2021.
In response to the application the plaintiff filed a submission dated 1 June 2021 and the affidavit of Anastasia Bertha Gazis affirmed 12 April 2021.
It is well established that the power to order summary judgments should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried: Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87, 99.
The plaintiff Anastasia Bertha Gazis filed a writ on 15 December 2020 against the first defendant Christopher Paul…

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: [2021] WADC 67
Decision Date: 7 JULY 2021

CaseChat Overview and Summary

The case of Gazis v Davies was heard in an unspecified Australian court, where the plaintiff sought to enforce a judgment debt owed by the defendant. The dispute centred on the enforceability of a judgment obtained in a foreign jurisdiction, and the defendant challenged the enforceability of the judgment on various grounds, including procedural irregularities. The defendant also filed an application to strike out certain parts of the plaintiff's statement of claim and an application for summary judgment.

The primary legal issues before the court were whether the judgment was enforceable in Australia and whether there were any grounds to strike out parts of the plaintiff's statement of claim. Additionally, the court had to consider whether the defendant's application for summary judgment was appropriate, given the contested nature of the case.

The court found that the judgment was enforceable in Australia, as the foreign court had jurisdiction and the judgment was final and conclusive. However, the court held that the plaintiff's statement of claim was insufficient, as it failed to provide adequate particulars of the judgment debt and the basis for the claim. The court accordingly struck out the further amended statement of claim and directed the plaintiff to file a new statement of claim within 21 days. The court also dismissed the defendant's application for summary judgment, as there were genuine issues of fact and law that needed to be resolved.

The court's orders were that the further amended statement of claim be struck out, the plaintiff file a statement of claim within 21 days, and the application for summary judgment be dismissed.

Orders

Orders of the court

The orders of the court are that:

1. The further amended statement of claim be struck out.

2. The plaintiff file a statement of claim within 21 days.

3. The application for summary judgment be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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