GOLDLIGHT Holdings v Drysdale
[2008] WADC 128
•11 SEPTEMBER 2008
GOLDLIGHT HOLDINGS -v- DRYSDALE [2008] WADC 128
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WADC 128 | |
| Case No: | CIV:682/2008 | 1 & 22 AUGUST 2008 | |
| Coram: | SCOTT DCJ | 11/09/08 | |
| PERTH | |||
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed Unconditional leave to defend granted Action remitted to Supreme Court | ||
| PDF Version |
| Parties: | GOLDLIGHT HOLDINGS (ACN 120 730 850) ROBERT JOHN DRYSDALE |
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
ROBERT JOHN DRYSDALE
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 684 of 2008 in which Adrian John Moore is the defendant ("Moore 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 Moore 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 Moore 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 the Moore action took out a chambers summons on 23 June 2008 proceedings.
Order 14 – 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).
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
(Page 4)
- 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 923 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 two affidavits namely:
(a) affidavit of the defendant sworn 26 May 2008 ("defendant's first affidavit");
(Page 6)
- (b) affidavit of the defendant sworn 8 August 2008 ("defendant's second 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 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 13) 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 meetings at which he attended together with other potential buyers of lots in the subdivision, including other defendants in proceedings instituted by the plaintiff;
(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 6).
(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 most reluctant to sign an unconditional contract (that is one not subject to finance) to purchase the lot because he needed to obtain finance to complete that purchase. He said he could not afford to complete the purchase without obtaining bank finance for at least 95 per cent of the price and he was only prepared to risk losing his $2,000 deposit;
(d) on or about 12 October 2007 he telephoned Sean Freestone of Oceanside Finance, who was the finance broker who assisted him to obtain a business loan, to seek advice from him as to whether or not he was able to obtain a loan of $220,000 which was the amount he needed to borrow to complete the purchase of the lot and to pay the expenses which he understood would be payable in relation that purchase. He said that Mr Freestone orally advised him that he would not be able to obtain a loan to purchase the lot because he did not have the money required for a deposit which he was told would be $22,000. He said that he did not make an application for a loan because he was unable to come up with the deposit he understood was required;
(e) as a consequence he sent an email to Mr Di Latte dated 15 October 2007 (exhibited to the defendant's first affidavit) and subsequently an email of 1 November 2007 which was also exhibited to the defendant's first affidavit by which he purported to terminate the contract and by the second of those emails confirmed that he was not in a financial position to purchase the lot; and
(f) by letter dated 11 February 2008 sent by Richard Payne & Associates, the solicitors for the defendant and
- 15 other buyers of lots in the subdivision to De Vita & Dixon, Richard Payne & Associates confirmed the termination of contracts for sale including the contract into which he had entered.
20 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;
(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 by telephone of a finance broker;
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 borrow the required sum to purchase the lot.
(Page 9)
21 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.
22 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.
23 The issue raised by the defendant is that given his financial circumstances he did not have the financial ability to borrow the funds necessary to purchase the lot.
24 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.
25 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
26 I have, in the Moore action and the Patina action given the defendants unconditional leave to defend. There is an application on foot in the Moore 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.
27 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.
28 To that end it might be that the actions can be heard one after the other with evidence in one being, relevantly, evidence in others.
(Page 10)
29 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 Moore 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.
30 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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