GOLDLIGHT Holdings Pty Ltd v Moore
[2008] WADC 129
•11 SEPTEMBER 2008
GOLDLIGHT HOLDINGS PTY LTD -v- MOORE [2008] WADC 129
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WADC 129 | |
| Case No: | CIV:684/2008 | 1 & 22 AUGUST 2008 | |
| Coram: | SCOTT DCJ | 11/09/08 | |
| PERTH | |||
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed Unconditional leave to defend granted Action remitted to Supreme Court | ||
| PDF Version |
| Parties: | GOLDLIGHT HOLDINGS PTY LTD (ACN 120 730 850) ADRIAN JON MOORE |
Catchwords: | Summary judgment Triable issue Remission to Supreme Court Turns on own facts |
Legislation: | Nil |
Case References: | Cordinup Resorts Pty Ltd v Terana Holdings Pty Ltd (1997) 143 FLR 18 Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 General Credits (Finance) Pty Ltd v Shipton Holdings Pty Ltd, unreported; SCt of WA; Library No 2054; 19 May 1977 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
ADRIAN JON MOORE
Defendant
Catchwords:
Summary judgment - Triable issue - Remission to Supreme Court - Turns on own facts
Legislation:
Nil
Result:
Application dismissed
Unconditional leave to defend granted
Action remitted to Supreme Court
(Page 2)
Representation:
Counsel:
Plaintiff : Mr M L Bennett
Defendant : Mr R J L McCormack
Solicitors:
Plaintiff : Lavan Legal
Defendant : Richard Payne & Associates
Case(s) referred to in judgment(s):
Cordinup Resorts Pty Ltd v Terana Holdings Pty Ltd (1997) 143 FLR 18
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
General Credits (Finance) Pty Ltd v Shipton Holdings Pty Ltd, unreported; SCt of WA; Library No 2054; 19 May 1977
(Page 3)
1 SCOTT DCJ: This is one of a number of actions on foot in the District Court in which the plaintiff claims (inter alia) an order for specific performance against defendants who entered into contracts to purchase lots in a subdivision of which the plaintiff was the developer. There is also an action on foot in the Supreme Court, CIV 1309 of 2008, in which the defendant is Dale Richard Poole ("Poole action") in which the same or similar relief is sought by the plaintiff. The Poole action was commenced in the Supreme Court because the amount in dispute exceeded the jurisdiction of this Court.
2 In this Court the plaintiff has made an application for summary judgment pursuant to O 14 r 3 in this action and in two other actions, namely 682 of 2008 in which Robert John Drysdale is the defendant ("Drysdale action") and 677 of 2008 in which Patina Pty Ltd is the defendant ("Patina action").
3 The plaintiff's applications for summary judgment in this action, the Drysdale action and the Patina action are to some extent test cases and in the event that summary judgment was granted to the plaintiff in these actions then the plaintiff will, as I understand it, press on with applications for summary judgment in the other actions.
4 If the plaintiff's applications for summary judgment are not successful in this action and/or the Drysdale action and/or the Patina action, then the defendants in these actions propose that all of the actions in this Court be remitted to the Supreme Court to be dealt with in concert with the Poole action given likely cost savings by reason that there are issues common to all actions. To that end the defendant in this action took out a chambers summons on 23 June 2008 proceedings.
Order 14 application
Principles
5 The principles governing applications for summary judgment are not contentious. The plaintiff bears the burden of persuading the court that the claim is a good one, that there is no defence to it and that leave to defend should thereby not be granted and judgment should be given for the plaintiff.
6 The defendant assumes an evidentiary burden but the overall legal burden of persuasion remains upon the applicant (Cordinup Resorts Pty Ltd v Terana Holdings Pty Ltd (1997) 143 FLR 18 at 23).
(Page 4)
7 The power to order summary judgment 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 at 99).
8 The question, in the end, is whether there is a triable issue or a real question which ought to be tried.
9 Even though the defendant cannot show an issue which ought to be tried, he or she may be able to satisfy the Court that the circumstances ought to be investigated and that the claim requires the closer investigation of a trial (General Credits (Finance) Pty Ltd v Shipton Holdings Pty Ltd, unreported; SCt of WA; Library No 2054; 19 May 1977).
10 Counsel for the defendant submits that this action is one in which the principles in that case ought to be applied. To that end he says that the nature of the representations alleged to have been made by the agent of the plaintiff and the multiplicity of actions arising out of the same or similar set of facts might justify a determination that even if there is no clear issue which ought to be tried, there is in any event good reason for investigation which will result from a trial. I do not accept that submission. My view is that if I am not satisfied that there is a question which ought to be tried, then the plaintiff would be entitled to judgment.
Whether question to be tried
11 In the statement of claim the plaintiff (relevantly) pleads that:
"(a) By written contract made on or about 7 February 2007 the Plaintiff agreed to sell and the Defendant agreed to purchase Lot 913 in the Plaintiff's subdivision ('lot') for the price of $225,000 ("price").
(b) The contract provided (inter alia) that:
(i) the Defendant would pay to the Plaintiff a deposit of $2,000 with the balance of the price to be paid on settlement;
(ii) as soon as practicable after the plan of subdivision was in order for dealing the Plaintiff was to apply for and arrange for the issue of a separate Certificate of Title for the lot and notify the
- Defendant as soon as practicable after a separate Certificate of Title had been issued for the lot;
- (iii) settlement was to occur 14 days after a Certificate of Title for the lot was issued;
(iv) in the event that the Defendant repudiated the contract the Plaintiff was entitled to affirm the contract and sue the Defendant for damages in default or for specific performance.
- (c) On or about 20 March 2008 the Plaintiff applied for and arranged for the issue of a separate Certificate of Title for the Lot.
(d) On 11 February 2008 the Defendant purported to terminate the contract.
(e) On 17 March 2008 the Plaintiff affirmed the contract.
(f) On or about 14 April 2008 a duplicate Certificate of Title for the lot was issued to the Plaintiff and on or about 15 April 2008 the Plaintiff notified the Defendant in writing that a separate Certificate of Title had been issued for the lot."
12 The plaintiff maintains that he is and was at all material times ready, willing and able to complete the contract.
13 The plaintiff seeks (inter alia) a declaration that the contract remains in full force and effect and an order for specific performance.
14 The affidavit in support of the plaintiff's application was sworn by Carmelo Giglia on 1 May 2008 ("Giglia's affidavit"). In that affidavit Mr Giglia verified the facts upon which the plaintiff's claim was based and further deposed to the fact that he was informed by Frank Di Latte that Mr Di Latte did not make representations to the defendant in the terms alleged in the letter from Richard Payne & Associates dated 11 February 2008 exhibited to the Giglia affidavit.
15 Mr Di Latte did not swear an affidavit in support of the plaintiff's application.
16 In response to the plaintiff's application the defendant filed a number of affidavits namely:
(Page 6)
- (a) affidavit of the defendant sworn 26 May 2008 ("defendant's first affidavit");
(b) affidavit of Lisa Natalie Moore sworn 17 July 2008 ("Ms Moores affidavit");
(c) affidavit of the defendant sworn 8 August 2008 ("defendant's second affidavit");
(d) affidavit of Richard Andrew Payne sworn 19 August 2008 ("Payne's second affidavit"); and
(e) affidavit of Richard Andrew Payne sworn 21 August 2008 ("Payne's third affidavit").
In response to the defendant's second affidavit the plaintiff filed an affidavit of Nathan Christopher Ebbs sworn 19 August 2008 ("Ebbs' affidavit").
17 The defendant also relies upon the affidavit of Richard Andrew Payne sworn 18 July 2008 in the Moore action ("Payne's first affidavit") to which was exhibited:
(a) copies of the orders made in the Poole action;
(b) copy of the statement of claim in the Poole action; and
(c) copy of the amended defence and counterclaim in the Poole action.
18 In the defendant's second affidavit (par 16) he deposes to the fact that in the event that unconditional leave is granted to defend this action he proposes to instruct his solicitor to lodge a counterclaim, the substance of which will seek orders confirming that the contract is at an end and that he is entitled to a return of his $2,000 deposit. That counterclaim will be in similar terms to the counterclaim filed in the Poole action.
19 The issues raised by the defendant which are contended to be triable issues are as follows. In the defendant's first affidavit he deposed to the following:
(a) Mr Di Latte, as the agent for the plaintiff made certain representations to (inter alia) him to induce, relevantly, him to enter into the contract and pay the price ("representations"). The representations were made at a meeting at which he attended together with other potential buyers of lots in the subdivision, including other defendants in proceedings instituted by the plaintiff;
(Page 7)
- (b) The representations were as follows:
(1) it was not necessary for an offer to purchase a lot in the subdivision to be subject to finance because if a buyer could not proceed with the purchase the worst that would happen would be that the buyer would lose the deposit of $2,000;
(2) an assurance that in the event that a buyer could not obtain finance for a purchase or was unable to proceed to settlement, the buyer would only lose the deposit of $2,000; and
(3) a further assurance that if a buyer was unable to complete the purchase (of the relevant lot) the worst case scenario would be that the buyer would only lose the $2,000 deposit.
(Par 7).
(c) in reliance upon the representations he entered into the contract to purchase the lot. He would not have executed the contract in the absence of the representations because he was only prepared to risk the $2,000 deposit and by reason of his then limited financial circumstances which were that he could not afford to complete the purchase of the lot without obtaining bank finance for at least 90 per cent of the price;
(Par 8).
20 In the defendant's second affidavit he deposes to the following:
(a) in about July 2007 he was a self employed stonemason and in the financial year ended 30 June 2007 he earned a gross income of approximately $84,000 and except for approximately $13,000 earned in that financial year by his wife his earnings were the family's only source of income;
(b) his wife and he owned a home upon which there was a mortgage of approximately $222,000 with monthly repayments of about $1,500;
(c) in or about July 2007 he had a business loan of $76,000 with monthly payments of $500 and approximately $5,300 on credit cards which he was servicing by making payments of $200 per month. The family had no other savings;
(Page 8)
- (d) in or about late July 2007 he asked his wife to call his finance broker, Sean Freestone of Oceanside Finance to ask him to assist him to calculate whether or not he could afford the repayments on a loan of $225,000 which was the amount he needed to borrow to be able to complete the purchase of the lot. He was informed by his wife and verily believed that Mr Freestone advised her that the loan repayments on an interest only loan would be $1,535.00 per month;
(e) given his other financial commitments a further repayment of $1,535.00 per month was much more than he could afford to pay. He did not make a formal application for a loan because he knew that he simply could not afford it;
(f) on about 9 August 2005 Mr Di Latte telephoned him and asked him what he was going to do regarding the purchase of the lot in response to which he advised Mr Di Latte that he was not in a financial position to go through with the purchase. He said that he told Mr Di Latte that "I guess that's it and I just lose my deposit and that will be the end of the matter" to which Mr Di Latte replied "yes";
(g) after his discussion with Mr Di Latte on 9 August 2007 and on the basis that he understood and believed that the contract for the purchase of the lot was at an end, a month or so later he increased his house mortgage by $20,000 to complete outstanding building work and landscaping on his house. That resulted in his monthly loan repayments increasing by about $200 per month which was the limit that he could afford at that time;
(h) on 1 November 2007 he heard from Mario Puglia that he and his wife also signed a contract to buy a lot in the sub-division through Mr Di Latte and that they were unable to end their contract. As a consequence Mr Moore telephoned Mr Di Latte and questioned him as to his contractual situation and reminded Mr Di Latte of their telephone conversation on 9 August 2007 to which Mr Di Latte responded that he did not recall that conversation;
(i) he then sent Mr Di Latte an email dated 1 November 2007 to which he did not receive a response and forwarded a
- facsimile to Mr Di Latte to essentially the same effect as his earlier email on 5 November 2007; and
- (j) since July 2007 his financial position has worsened because of several interest rate rises which have added to the monthly cost of servicing his various loan commitments. In addition his wife and he have found the general cost of living to have increased significantly. There has also been a decline in the demand for his services as a stonemason.
21 In the defendant's first affidavit he also deposes to the fact that by letter dated 11 February 2008 sent by Richard Payne & Associates, the solicitors for the defendant and 15 other buyers of lots in the sub-division, to De Vita & Dixon, Richard Payne & Associates confirmed the termination of contracts for sale including the contract into which he had entered.
22 In Payne's third affidavit Mr Payne exhibits a copy of an email from Mr Freestone to the defendant and his wife in which Mr Freestone advised:
"the bank valued your home at $450,000 back in June 2006. They did not need to revalue it with the recent loan application. In regards to equity you do have sufficient in your home to purchase the Byford lot. I have also completed a quick loan assessment and your (sic) should meet all the criteria for the loan. I have attached some details for your information."
23 This email was in response to an email from Mrs Moore to Mr Freestone dated 26 November 2007 in which she wrote "I keep meaning to ask you how much did the bank value our home? Looks like we are going ahead with the Byford land, so we will be looking at another loan of approximately $220,000. Should we be okay borrowing this amount? and on an interest only loan if possible, what's your thoughts?"
24 In Payne's third affidavit Mr Payne then refers to a telephone conversation which he had with the defendant and his wife late on 20 August 2008 in which conversation he deposes that he was informed:
(a) by the defendant that he was on leave from his work in the Pilbara, was with his wife in the south west of Western Australia and did not have access to emails and faxes;
(Page 10)
- (b) by Mrs Moore that because of the nature of the responses which the defendant had in his communications with Mr Di Latte, she felt panicked and without reference to the defendant sent the email to Mr Freestone dated 26 November 2007 seeking some assurance about the defendant's financial position in relation to taking out a loan for the proposed purchase of the lot and the amounts that would be required to service such a loan. She said that she sent the email to Mr Freestone dated 26 November 2007 without giving Mr Freestone any updated details of the defendant's financial position and that the last financial position that the defendant had provided to Mr Freestone was a number of months earlier when they had increased the mortgage on their home; and
(c) by the defendant that after receiving the email from Mr Freestone dated 26 November 2007 he and his wife again reviewed their overall financial position to decide if the defendant could afford to take out a loan of $225,000 and make the monthly loan repayments which would be payable in the event that a loan was obtained. The defendant again decided that he could not afford the monthly repayments on such a loan.
25 The plaintiff:
(a) accepts that for the purposes of the application for summary judgment the facts deposed to by or on behalf of the defendant need to be accepted;
(b) contends that the representations were not representations of a future fact but the expression of an opinion and the provisions of s 52 of the Trade Practices Act would not be thereby enlivened. To that end I am of the view that the representations may be construed as referring to the plaintiff's (future) intention not to rely upon the strict terms of the contract should the facts the subject of the representations come to fruition. It is arguable that, in that light, the representations were as to a future fact;
(c) submits that if the representations did amount to representations as to a future fact then on a proper construction of the representations the defendant would need to demonstrate that he was unable (as opposed to unwilling) to complete the contract because of his inability
- to obtain finance to do so and in order to discharge that evidentiary burden the defendant would need to prove that he had made proper endeavours to obtain finance to enable completion. That would entail at the very least an application actually being made to a recognised funder; and
- (d) says that the defendant did not make any formal application to a recognised funder and he did no more than to make an enquiry, via his wife, by telephone of a finance broker.
26 The defendant submits that:
(a) the representations were not confined to the inability on his part to obtain finance but included an inability to proceed to settlement for other reasons; and
(b) in any event on the evidence adduced by him he has demonstrated that he did not have the financial ability to service a loan necessary to enable him to purchase the lot.
27 The question for me to determine is whether I am satisfied that there is no triable issue and that, as a consequence, judgment ought to be granted to the plaintiff, summarily. I am not so satisfied.
28 Although I have some doubt as to whether, in the circumstances in which they were made, the representations could objectively communicate to the defendant that he was entitled to resile from the contract in the event that for any reason he was unable to settle, the representations may be construed as communicating to the defendant that if he was unable to obtain a loan or was unable to proceed to settlement through lack of finance then he would be entitled to resile from the contract and his exposure would not exceed the forfeiture of the deposit.
29 The issue raised by the defendant is that given his financial circumstances he did not have the financial ability to service a loan of the funds necessary to purchase the lot.
30 It is true that the defendant did not make a formal application for a loan and that may well be a compelling matter at trial. The steps, however, which the defendant would need to have taken so as to establish that he was unable to obtain finance or secure a loan or that he was unable to effect settlement are matters of degree and are, in my view, matters which will require exploration at trial.
(Page 12)
31 As a consequence I am not satisfied that the plaintiff has established that there is no issue to be tried in this action and I propose to give the defendant unconditional leave to defend.
Remitting action to the Supreme Court
32 I have, in the Drysdale action and the Patina action given the defendants unconditional leave to defend. There is an application on foot in this action for an order that all of the actions in this Court be consolidated and remitted to the Supreme Court to be dealt with in the CMC list with the Poole action.
33 I am not disposed to make an order for consolidation because it might be that there will be a number of factual issues which will be discrete to individual actions. However there is a common thread being the representations alleged to have been made by Mr Di Latte.
34 To that end even if a consolidation order is not suitable, it might be that the actions can be heard one after the other with evidence in one being, relevantly, evidence in others.
35 As a matter of case management I consider it appropriate that there be an opportunity for the actions to be dealt with in an expeditious way and given the fact that the Poole action has progressed in the CMC list in the Supreme Court I consider it appropriate that this action, the Drysdale action and the Patina action and the other similar actions in this Court be remitted to the Supreme Court and it will be a matter for that Court to determine the manner in which they will then be dealt with.
36 I suggest that the parties submit a minute dealing with the disposition of the summary judgment applications in these three actions and, if appropriate, the other actions in this Court in which I understand Order 14 applications have been made and the remission of the actions to the Supreme Court.
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